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 Cornell University Library 
 HG363.U5 N53 
 
 Opinions delivered bv the judges of the 
 
 3 1924 030 187 144 
 
 ALBANY: 
 
 WEED, PAKB^JaND COMPANY, 
 1863. 
 
 .. .■ 
 
 mtif*»m 
 
 
Cornell University 
 Library 
 
 The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924030187144 
 
OPINIONS 
 
 DELIVERED BY THE 
 
 Hew ^osK (;^:Ae) 
 
 JUDGES OF THE COURT OF APPEALS, 
 
 CONSTITUTIONALITY OF THE ACT OF CONGRESS, 
 
 DECLARING 
 
 TREASURY NOTES A LEGAL TENDER 
 
 PAYMENT OF DEBTS. 
 
 ALBANY : 
 
 "WEED, PARSONS AND COMPANY. PRINTERS. 
 1863. 
 
CONTENTS. 
 
 Page. 
 
 Opinion op Judge Davies, 5 
 
 Opinion op Judge Balcom, 69 
 
 Opinion op Judge Weight, 79 
 
 Opinion op Judge Emott, 97 
 
 Opinion op Judge Marvin, 115 
 
 Opinion op Judge Denio, 141 
 
OPINIONS. 
 
 THE METROPOLITAN BANK and THE SHOE AND LEATHER BANK, 
 
 Respondents, 
 
 agst. 
 
 HENRY H. VAN DYCK, Superintendent of the Bank Department, Appellant. 
 
 LEWIS H. MEYER, Appellant, 
 
 agst. 
 
 JAMES I. ROOSEVELT, Respondent. 
 
 These causes, involving the validity of the act of con- 
 gress declaring treasury notes a legal tender in payment 
 of all debts, were argued together in the Court of Appeals, 
 at the June term, 1863, by Messrs. Porter and Tremain, 
 counsel for the plaintiffs in the first above entitled action, 
 and by Messrs. Curtis and Doty for defendants; and by 
 Messrs. Noyes and Eoelker for plaintiff, in the second 
 above entitled action, and by Mr. Curtis for defendant. 
 At the opening of the court at the September term, 1863, 
 judgments were pronounced in both cases, declaring the 
 validity of the act of congress, all the judges concurring 
 except Denio and Selden. The following are the opin- 
 ions delivered: 
 
 OPINION OF JUDGE DA VIES. 
 Davies, J. The respondents in the first above entitled 
 cause are banking associations, organized under the gene- 
 ral banking law of the State of New York, and the several 
 acts amendatory thereof, and are located and doing busi- 
 ness in the city of New York. By the provisions of those 
 acts, the said banks were required to deposit securities 
 
with the bank department for the redemption and pay- 
 ment of the bills or circulating notes issued by such banks 
 respectively. And upon default of any such bank, upon 
 lawful demand, to pay any such note or bill " in the law- 
 ful money of the United States," then the holder of such 
 note, was authorized to cause the same to be protested, 
 and the appellant, the superintendent of the bank depart- 
 ment, on receiving such protest, is directed to take the 
 proceedings prescribed by said act, to compel payment 
 thereof, out of the securities so deposited with him for 
 that purpose, and if need be to sell the same. (Sec. 4 of 
 act of 1838, chap. 260.) On the 26th of March, 1863, one 
 D. Valentine, being the owner and holder of a bill or note 
 issued by each of the respondents, of the denomination of 
 ten dollars, presented the same at their several banks and 
 demanded payment thereof in the gold or silver coin of 
 the United States, which was refused by the respondents, 
 but each tendered to him, and offered to pay the said note 
 or bill in a note of the denomination of ten dollars, issued 
 by the secretary of the treasury, upon the credit of the 
 United States, under and by virtue of the act of the con- 
 gress of the United States, entitled "an act to authorize 
 the issue of United States notes and for the redemption 
 or funding thereof, and for funding the floating debt of 
 the United States," approved February 25, 1862. That 
 thereupon the said Valentine caused the said notes to be 
 protested, and the protest thereof to be filed with the 
 appellant, and that thereupon the appellant gave notice, 
 requiring said respondents to pay their respective notes, 
 within fifteen days, in gold or silver coin, or in default the 
 said appellant would proceed to sell the said securities so 
 deposited with him, and also proceed to make redemption 
 thereof, pursuant to the requirements of said acts. Upon 
 an agreed case, pursuant to section 372 of the Code of 
 Procedure, the following questions were submitted to the 
 Supreme Court at general term, for decision : 
 
 1. Whether the aforesaid act of congress, approved 
 February 25, 1862, is constitutional and valid, and also, 
 whether the refusal of the plaintiffs to redeem their said 
 
notes so issued by them, upon demand, in \he gold or 
 silver coin of the United States, and their offer to redeem 
 their said notes in the notes of equal denomination issued 
 as aforesaid, by authority of congress, was a failure or 
 refusal to redeem their notes in the lawful money of the 
 United States. 
 
 2. If the court be of the opinion that the said act is 
 constitutional, and that plaintiffs offered to redeem their 
 notes in' the lawful money of the United States, then 
 judgment is to be entered restraining the defendant, as 
 superintendent, from taking any further steps, from re- 
 deeming any of the notes of the plaintiffs, in cases where 
 the plaintiffs have offered to redeem in the legal tender 
 notes of the United States, and that he be restrained from 
 taking any steps towards the sale of the stocks or trust 
 funds in his hands belonging to these plaintiffs. But if 
 on the contrary, the court be of the opinion that the said 
 act of congress is unconstitutional, and that a refusal to 
 redeem in the gold or silver coin of the United States, 
 is a refusal to redeem in the lawful money of the United 
 States, then a judgment was to be entered dismissing the 
 complaint of the plaintiffs. 
 
 In this action, the Supreme Court of the third judicial 
 district, held the said act of congress to be constitutional 
 and valid, and that a tender made in the treasury notes 
 issued by virtue and in pursuance of said act, was a good 
 and legal tender for all debts mentioned therein, and that 
 the tender made by the plaintiffs to redeem their circulat- 
 ing notes in the said above described treasury notes, was 
 a tender and offer to redeem their said notes in the lawful 
 money of the United States. The court thereupon gave 
 to the plaintiffs the relief asked for in their complaint. 
 
 In the second above entitled cause, the facts agreed 
 upon, in the case submitted to the Supreme Court under 
 and in pursuance of the same section of the Code, were, 
 that the plaintiff, Lewis H. Meyer, had become the owner 
 in fee, in May, 1861, of certain premises subject to a 
 mortgage to the defendant, to secure the sum of $8,000. 
 On the 23d of August, 1854, one Samuel Bowne was the 
 
owner in fee of said premises, and procured a loan from 
 the defendant of the sum of $8,000, and to secure the pay- 
 ment of which, on the 23d of August, 1857, he made and 
 executed to the defendant his bond in the penal sum of 
 $10,000 "lawful money of the United States of America," 
 conditioned for the payment of the just and full sum of 
 $8,000 on said 23d of August, 1857, with interest thereon 
 at the rate of seven per cent, payable semi-annually. To 
 secure the payment of his said bond, the said Bowne and 
 his wife made and executed a mortgage on said premises, 
 bearing even date with said bond, which recited that said 
 Bowne was justly indebted to said defendant "in the sum 
 of eight thousand dollars lawful money of the United 
 States of America." The mortgaged premises were con- 
 veyed to the plaintiff, and he assumed the payment of 
 said mortgage. 
 
 On the 11th of June, 1862, the plaintiff desiring to pay 
 off and cancel said mortgage, tendered to the defendant 
 the sum of $8,170, being the amount due for principal 
 and interest on said mortgage up to the said 11th of 
 June, 1862, in notes of the United States, issued under 
 and by virtue of said act of congress, approved February 
 25, 1862. The defendant refused to receive the same as a 
 legal tender, and claimed that the repayment of said 
 money should be made in gold coin of the United States. 
 It was thereupon agreed between the parties, that the 
 defendant should receive, and he did receive the said sum 
 of $8,170, in said notes, conditionally, and that the ques- 
 tion, whether the said notes of the United States are and 
 were a legal tender in payment of said mortgage debt 
 and interest, should be submitted to the Supreme Court, 
 and if such court should decide that said notes were and 
 are a legal tender and discharge of said bond and mort- 
 gage, that then the said defendant should deliver up said 
 bond and mortgage, and acknowledge satisfaction thereof 
 and discharge the same of record; but if the court should 
 decide that said notes were not and are not a legal tender 
 in payment of said mortgage debt, that then the plaintiff 
 should pay to the defendant the further sum of $326.78, 
 
9 
 
 with interest thereon from June 11, 1862, and that upon 
 payment of said last mentioned sum, with interest, the 
 defendant was to deliver up the bond and mortgage to be 
 canceled, and acknowledge satisfaction thereof and cancel 
 the same of record. 
 
 In this last mentioned action the Supreme Court of the 
 first judicial district gave judgment for the defendant, 
 and that the plaintiff should pay to the defendant the 
 additional sum of $326.78, and interest from June 11, 
 1862, and that on payment of the same, the defendant 
 acknowledge satisfaction of said bond and mortgage, and 
 discharge the same of record, and deliver the same up to 
 be canceled. 
 
 From the judgment in the first above entitled action 
 the defendant appeals to this court, and from the judg- 
 ment in the second case the plaintiff also appeals to this 
 court. 
 
 The question presented for our determination in these 
 actions is one of the gravest importance, and challenges 
 our most careful consideration. We are called upon to 
 annul and set aside an act of the Congress of the United 
 States, passed in conformity with the forms of the funda- 
 mental law, after grave deliberation by both houses of 
 congress, and which has assumed the form of a law with 
 the approval of the executive. Two departments of the 
 government have therefore united, and all which by the 
 provisions of the Constitution are required to unite, in 
 the enactment of a law. The responsibility of determin- 
 ing whether these two departments have violated the Con- 
 stitution is now cast upon the third department, that of 
 the judiciary, and however great that responsibility may 
 be, we have, in the discharge of the duties imposed upon 
 us, to meet it, and decide whether or not the Constitution 
 has been violated. Before proceeding to the discussion 
 of the precise question presented for adjudication in the 
 present cases, it will greatly aid us in arriving at a correct 
 and intelligent conclusion to advert briefly to the system 
 of government organized by the Constitution of the United 
 States, the principles which should govern in the construc- 
 
 2 
 
10 
 
 tion of that Constitution, and the decisions which have 
 been made, touching the powers of congress under various 
 provisions of that Constitution. 
 
 We are all familiar with the fact, that the first system 
 of a general or national government, formed by the colo- 
 nies in this country, upon their separation from the crown 
 of Great Britain, and assuming the position of indepen- 
 dent states, was that of a confederation of the several 
 states. "Articles of confederation and perpetual union" 
 were entered into between the several states; and the 
 style of the confederacy was that of "The United States 
 of America." Each state retained its sovereignty, free- 
 dom and independence, and every power, jurisdiction and 
 right which were not by the articles of that confederation, 
 expressly delegated to the United States, in congress assem- 
 bled. The ratification clause of the articles solemnly 
 declared, that " whereas it has pleased the great Governor 
 of the world, to incline the hearts of the legislatures 
 we respectively represent in congress to approve of and 
 to authorize us to ratify the said articles of confederation 
 and perpetual union-. Know ye, that we, the undersigned 
 delegates, by virtue of the power and authority to us 
 given for that purpose, do by these presents, in the name 
 and in behalf of onr respective constituents, fully and 
 entirely ratify and confirm each and every of the said 
 articles and perpetual union. And we do further solemnly 
 plight and engage the faith of our respective constituents, 
 that * * * the articles thereof shall be inviolably observed by 
 the states tee respectively represent; and that the union 
 shall be perpetual." History informs us of the defects and 
 the weakness of the articles of confederation, and of the 
 conviction of the whole country that a different and more 
 efficient system of government must be devised to ensure 
 to the people of the several states, their common defence, 
 the security of their liberties, and their mutual and gene- 
 ral welfare. A convention assembled in Philadelphia in 
 1787, which framed a Constitution that received the sanc- 
 tion of the people of the several states, and under which 
 a government was organized in 1789, which has challenged 
 
11 
 
 the admiration of the world, and under the benign adm.u- 
 istration of which we have become a great and powerful 
 nation, among the first of the earth. 
 
 The address of the convention to the people on submit- 
 ting the result of their labors for approval, which was 
 signed by George Washington, its president, says: "The 
 friends of our country have long seen and desired that 
 the power of making war, peace and treaties, that of coin- 
 ing money, and regulating commerce, and the correspon- 
 dent, executive and judicial authorities should be fully 
 and effectually vested in the general government of the 
 Union. * * * 
 
 " In all our deliberations on this subject, we kept steadily 
 in view that which appears to us the greatest interest of 
 every true American — the consolidation of our Union — 
 in which is involved our prosperity, felicity, safety, per- 
 haps our national existence. This important consideration, 
 seriously and deeply impressed upon our minds, led each 
 state in the convention to be less rigid on points of inferior 
 magnitude than might have been otherwise expected ; and 
 thus the Constitution which we now present, is the result 
 of a spirit of amity and of that mutual deference and con- 
 cession, which the peculiarity of our political situation 
 rendered indispensable." 
 
 The Constitution thus prepared, was submitted to the 
 People of the several States in conventions assembled, and 
 they aggregately declared in ordaining and establishing 
 the said Constitution for the United States of America ; 
 that "the people of the United States, in order to form 
 a more perfect Union, establish justice, ensure domestic 
 tranquillity, provide for the common defence, promote the 
 general welfare and secure the blessings of liberty to our- 
 selves and to our posterity," did ordain and establish the 
 same. 
 
 A perpetual Union was thus established by the articles 
 of confederation ; to render that Union more perfect was 
 the object to be attained by the Constitution. 
 
 It was to secure to the framers thereof and to their pos- 
 terity the blessings enumerated. The consolidation of the 
 
12 
 
 Union and its perpetuity were not all that was contemplated. 
 Absolute sovereignty and complete supremacy in the exer- 
 cise of all governmental powers confided to the national 
 government were intended to be secured, and it is believed 
 that such intention was accomplished. 
 
 All legislative powers thereby granted were vested in 
 the congress, and the powers so granted to congress are 
 specifically enumerated in the eighth section of article 
 first, and lest there might be doubts suggested as to the 
 fullness of the authority granted, to such specific enumera- 
 tion this clause is added, "and to make all laws which 
 shall be necessary and proper for carrying into execution 
 the foregoing powers, and all other powers vested by this 
 Constitution in the Government of the United States, or 
 in any department or officer thereof." 
 
 The omnipotence of the British Parliament is not more 
 absolute than is the supremacy of the congress of the 
 United States upon all subjects which are either expressly 
 or impliedly delegated to it. The President of the United 
 States, upon his induction into office, is sworn to "pre- 
 serve, protect and defend the Constitution of the United 
 States." He is the only officer in the national or state 
 governments who is required to take that oath, and all 
 executive, legislative and judicial officers, both of the 
 United States and of the several states, are required to be 
 bound by oath or affirmation to support the Constitution 
 of the United States. (Sec. 3 of art. 6.) It is made the 
 duty of the President, from time to time, to give to con- 
 gress information of the state of the Union, and to recom- 
 mend such measures as he shall judge necessary and expe- 
 dient, and it is the duty of congress, within the powers 
 delegated to it, to pass such laws as may be necessary 
 and proper to aid the President in fulfilling the high and 
 imperative trust reposed in him, and to enable him to pre- 
 serve, protect and defend the Constitution. To accomplish 
 all these purposes, and for the execution of the powers 
 thus conferred on the Government of the United States, 
 and for its own protection and preservation, and in its 
 own defence, the congress of the United States has abso- 
 
13 
 
 lute control over all the citizens thereof, and of the pro- 
 perty and resources of the nation, subject only to that 
 accountability which a representative in a free govern- 
 ment owes to his constituents, and that ordeal, happily, in 
 our favored land, is of frequent recurrence. That there 
 might not be any misapprehension as to the fact of this 
 absolute and perfect supremacy, the Constitution emphati- 
 cally declares that " this Constitution and the laws of the 
 United States which shall be made in pursuance thereof; 
 and all treaties made, or which shall be made, under the 
 authority of the United States, shall be the supreme law 
 of the land, and the judges of every state shall he hound 
 thereby; anything in the Constitution or laws of any state 
 to the contrary notwithstanding." 
 
 The judges of every state, are expressly declared to be 
 bound by the Constitution and the laws of the United 
 States, made in pursuance thereof, and as they have all 
 taken an oath to support that Constitution, every safe 
 guard would seem to have been provided to ensure their 
 fidelity to that Constitution and the laws made under it. 
 Such laws overrule the state constitutions, and the laws 
 of every state, and if the latter conflict with the former, 
 they are void and nugatory, and it is the imperative duty 
 of the judges so to declare. 
 
 These views, it is believed, are fully sustained by 
 learned commentators, as well as by the authoritative 
 decisions of the Supreme Court of the United States, the 
 final arbiter of the powers of that government. (Story's 
 Com. on the Constitution, % 354, 355, 356, 360.) In Mar- 
 tin v. Hunter (1 Wheat., 304, 324), the Supreme Court 
 said : " The Constitution of the United States was ordained 
 and established, not by the states in their sovereign 
 capacity, but emphatically as the preamble of the Constitu- 
 tion declared by the people of the United States." Chief 
 Justice Marshall, in delivering the unanimous opinion of 
 the court in the case of M'Culloch v. Maryland (4 
 Wheatou, 416), observed: "From the conventions called 
 to ratify it the Constitution derives its whole authority. 
 The government proceeds directly from the people, 'is 
 
14 
 
 ordained and established' in the name of the people, and is 
 declared to be ordained ' in order to form a more perfect 
 union, establish justice, ensure domestic tranquillity and 
 secure the blessings of liberty to themselves and to their 
 posterity.' The assent of the states in their sovereign 
 capacity, is implied in calling a convention, and thus sub- 
 mitting that instrument to the people. But the people 
 were at perfect liberty to accept or reject it, and their act 
 was final. It required not the affirmance, and could not 
 be negatived by the state governments. The Constitu- 
 tion, when thus adopted, was of complete obligation 
 and bound the state sovereignties. It has been said 
 that the people had already surrendered all their powers 
 to the state sovereignties, and had nothing more to 
 give. But, surely, the question whether they may 
 resume and modify the powers granted to govern- 
 ments, does not remain to be settled in this country. 
 Much more might the legitimacy of the general govern- 
 ment be doubted, had it been created by the states. The 
 powers delegated to the state sovereignties were to be 
 exercised by themselves. To the formation of a league, 
 such as was the confederation, the state sovereignties were 
 certainly competent. But when, 'in order to form a more 
 perfect union,' it was deemed necessary to change this 
 alliance into an effective government, possessing great 
 and sovereign powers, and acting directly on the people, 
 the necessity of referring it to the people and of deriving 
 its powers directly from them was felt and acknowledged by 
 all. The government of the Union, then, is emphatically and 
 truly a government of the people. In form and in substance 
 it emanates from them. Its powers are granted by them, 
 and are to be exercised directly on them and for their benefit. 
 * * It is the government of all, its powers are 
 
 delegated by all, it represents all, and acts for all." These 
 quotations are thus liberally made, because of their per- 
 tinency to the present investigation, and for the reason 
 that they are authoritative exposition of the objects aud 
 purposes of the Constitution, aud of the source of its power, 
 and are to be recognized and accepted as such by all 
 
15 
 
 tribunals. The government thus formed, is supreme and 
 self-supporting and self-perpetuating. It cannot be depen- 
 dent for its life or existence upon other governments or 
 sovereignties, but has given to itself vigor and strength 
 sufficient for its own preservation and perpetuity. This 
 point was directly resolved in the case of McCuUoch v. 
 Maryland (supra), tn which Chief Justice Marshall said : 
 "If any one proposition could command the universal 
 assent of mankind, we might expect it would be this, that 
 the government of the Union, though limited in its powers, 
 is supreme within its sphere of action. * * Though 
 any one state may be willing to control its operations, no 
 state is willing to allow others to control them. The 
 nation, on those subjects on which it can act, must neces- 
 sarily bind the component parts. But this question is not 
 left to mere reason, the people have in express terms 
 decided it by saying, ' this Constitution, and the laws of the 
 United States which shall be made in pursuance thereof, 
 shall be the supreme law of the land,' and by requiring 
 that the members of the state legislatures and the officers 
 of the executive and judicial departments of the states, 
 shall take the oath of fidelity to it." 
 
 The same doctrine was distinctly enunciated by Chief 
 Justice Taney, in the case of Ableman v. Booth (21 
 How., 506, 516), where he says, " The powers of the gen- 
 eral government and of the state, although both exist 
 and are exercised within the same territorial limits, are 
 yet separate and distinct sovereignties, acting separately 
 and independently of each other within their respective 
 spheres, and the sphere of action appropriated to the 
 United States, is as far beyond the reach of the judicial 
 process issued by a state judge or a state court, as if the 
 line of division was traced by landmarks and monuments 
 visible to the eye." 
 
 Again, we are to give to the various provisions of the 
 Constitution a liberal construction, such a construction as 
 will most effectually subserve the great purposes of its 
 formation, and best promote the general welfare of the 
 grantors of the powers contained in it, the people, the 
 
16 
 
 source and fountain of all power. The grant of power 
 is to be construed most favorable to the grantor, especially 
 where the power is granted, or the agency created for the 
 benefit and welfare of the grantor, or principal. The rule 
 which should govern in such a case is clearly laid down by 
 Story. (Story's Com. on Const., § 413.) He says : " But 
 in construing a Constitution of government framed by the 
 people, for their own benefit and protection, for the preser- 
 vation of their rights and property and liberty ; where the 
 delegated powers are not and cannot be used for the bene- 
 fit of their rulers, who are but their temporary servants 
 and agents ; but are intended solely for the benefit of the 
 people, no such presumption to use the words in the most 
 restricted sense necessarily arises. The strict or the more 
 extended sense both being within the letter, may be fairly 
 held to be within their intention, as either shall best pro- 
 mote the very objects of the people in their grant, as 
 either shall best promote or secure their rights, property or 
 liberty." 
 
 This court in the case of The People v. New Torlc Cen- 
 tral Railroad Company (24 K Y., 485, 486), approved of 
 the rule enunciated by Johnson, J., in Neivell v. People 
 (3 Seld., 93), that a Constitution is an instrument of gov- 
 ernment, made and adopted by the people for practical 
 purposes, connected with the commerce, business and 
 wants of human life. For this reason, pre-eminently, every 
 word should be expounded in its plain, obvious and com- 
 mon sense, and Judge Dento, arguendo, in the case of 
 Neivell v. The People (supra), stated the principle of iu- 
 terpretation, which, while it commends itself to the good 
 sense of all, is abundantly supported by authority, that a 
 written constitution, framed by men chosen for the work 
 by reason of their peculiar fitness, and adopted by the 
 people upon mature deliberation, implies a degree of care- 
 fulness of expression proportioned to the importance of 
 the transaction, and the words employed are to be pre- 
 sumed to have been used with the greatest possible dis- 
 crimination. Chief Justice Marshall, in Gibbons v. 
 Ogden (9 Wheaton, 188), in interpreting a provision of 
 
17 
 
 the Constitution of the United States, says: "As men 
 whose intentions require no concealment generally employ 
 the words which most directly and aptly express the ideas 
 they intend to convey, the enlightened patriots who 
 adopted it must be understood to have employed words in 
 their natural sense, and to have intended what they said." 
 
 We are now prepared to enter upon the inquiry, what 
 powers have been conferred by the Constitution upon 
 congress, and whether any such powers authorize the 
 enactment by that body of the act passed February 25, 
 1862. 
 
 The express powers needful to be referred to, thus speci- 
 fically delegated to congress, are : 
 
 1. To levy and collect taxes, duties, imposts and excises, 
 to pay the debts and provide for the common defence 
 and general welfare of the United States. 
 
 2. To borrow money on the credit of the United States. 
 
 3. To regulate commerce with foreign nations, and 
 among the several states and with the Indian tribes. 
 
 4. To coin money, regulate the value thereof, and of 
 foreign coin. 
 
 5. To provide for the punishment of counterfeiting the 
 securities and current coin of the United States. 
 
 6. To declare war, grant letters of marque and reprisal. 
 
 7. To raise and support armies. 
 
 8. To provide and maintain a navy. 
 
 9. To provide for calling forth the militia to execute the 
 laws of the Union, suppress insurrections and repel inva- 
 sions. 
 
 10. The United States having guaranteed to every state 
 in this Union a republican form of government, and en- 
 gaged to protect each of them against invasion and against 
 domestic violence. Congress has power to fulfill those 
 engagements. 
 
 11. Congress has also power to make all laws which 
 shall be necessary and proper for carrying into execution 
 the foregoing powers, and all other powers vested by the 
 Constitution in the Government of the United States or 
 in any department or officer thereof. 
 
 3 
 
18 
 
 We are to apply to the construction of the powers thus 
 delegated, the rule as settled in the case of McCulloch v. 
 Maryland (supra), that the government of the United 
 States can claim no powers which are not granted to it by 
 the Constitution ; and the powers actually granted must 
 be such as are expressly given, or given by necessary im- 
 plication. On the other hand, this instrument, like every 
 other grant, is to have a reasonable construction, accord- 
 ing to the import of its terms, and where a power is ex- 
 pressly given in general terms, it is not to be restrained to 
 particular cases, unless that construction grows out of the 
 context expressly or by necessary implication. 
 
 Chief Justice Marshall, in Gibbons v. Ogden (supra), 
 in delivering the opinion of the court, says : " This instru- 
 ment contains an enumeration of powers expressly granted 
 by the people to their government. It has been said that 
 these powers ought to be construed strictly. But why 
 ought they to be so construed ? Is there one sentence in 
 the Constitution which gives countenance to this rule? 
 In the last of the enumerated powers, that which grants 
 expressly the means for carrying all others into execution, 
 congress is authorized to make all laws which shall be 
 necessary and proper for the purpose. But this limitation 
 in the means, which may be used, is not extended to the 
 powers which are conferred ; nor is there one sentence in 
 the Constitution, which has been pointed out by the gentle- 
 men of the bar, or which we have been able to discern 
 that prescribes this rule. We do not therefore think our- 
 selves justified in adopting it. What do the gentlemen 
 mean by a strict construction ? If they contend only again st 
 that enlarged construction which would extend words be- 
 yond their natural and obvious import, we might question 
 the application of the terms, but should not controvert 
 the principle. If they contend for that narrow construc- 
 tion, which in support of some theory not to be found in 
 the Constitution, would deny to the government those 
 powers which the words of the grant, as usually under- 
 stood, import, and which are consistent with the general 
 views and objects of the instrument; for that narrow 
 
19 
 
 construction which would cripple the government and 
 render it unequal for the objects for which it is declared to 
 be instituted, and to which the powers given, as fairly 
 understood, render it competent ; then we cannot per- 
 ceive the propriety of this strict construction, nor adopt it 
 as the rule by which the Constitution is to be expounded. 
 * * * If, from the imperfection of human language, 
 there should be serious doubts respecting the extent of 
 any given power, it is a well-settled rule, that the objects 
 for which it was given, especially when those objects are 
 expressed in the instrument itself, should have great influ- 
 ence in the construction. We know of no reason for ex- 
 cluding this rule from the present case. The grant does 
 not convey power which might be beneficial to the grantor 
 if retained by himself, or which can inure solely to the 
 benefit of the grantee ; but is an instrument of power for 
 the general advantage, in the hands of agents selected for 
 that purpose ; which power can never be executed by the 
 people themselves, but must be placed in the hands of 
 agents or lie dormant. We know of no rule for constru- 
 ing the extent of such powers, other than is given by the 
 language of the instrument, which confers them, taken in 
 connection with the purposes for which they were con- 
 ferred." 
 
 No apology is necessary for quoting thus liberally from 
 this profound jurist and learned expounder of the pur- 
 poses and objects of the Constitution, and of the powers 
 conferred by it upon the congress of the United States, 
 upon the departments and officers thereof. 
 
 We should be doing great injustice to the framers of the 
 Constitution, and a great wrong to the people who adopted 
 it, to secure to themselves and their posterity the blessings 
 of liberty, if we give to it such a construction as will crip- 
 ple the government, and render it unequal to the objects 
 for which it was instituted. We must also bear in mind 
 that no interpretation of the words, in which those powers 
 are granted can be a sound one, which narrows their ordi- 
 nary import, so as to defeat the objects for which that 
 Constitution was made. That would be to destroy the 
 
20 
 
 spirit and to cramp the letter of the Constitution itself. 
 Mr. Justice Story, in delivering the opinion of the court 
 in Martin v. Hunter (1 Wheaton, 304, 326, 327), says: 
 This instrument (the Constitution), like any other grant, 
 is to have a reasonable construction according to the 
 import of its terms ; and when a power is expressly given 
 in general terms, it is not to be restrained to particular 
 cases, unless that construction grows out of the context 
 expressly or by necessary implication. The words are to 
 be taken in their natural and obvious sense, and not in a 
 sense unreasonably restricted or enlarged. The Constitu- 
 tion unavoidably deals in general language. It did not 
 suit the purposes of the people in framing this great char- 
 ter of our liberties to provide for minute specification of 
 its powers, or to declare the means by which those powers 
 should be carried into execution. It was foreseen that this 
 would be a perilous and difficult, if not impracticable task. 
 The instrument was not intended to provide merely for 
 the exigencies of a few years, but was to endure through 
 a long lapse of ages, the events of which were locked up 
 in the inscrutable purposes of Providence. It could not 
 be foreseen what new changes and modifications of power 
 might be indispensable to effectuate the general objects 
 of the charter, and restrictions and specifications, which 
 at the present might seem salutary, might in the end 
 prove the overthrow of the system itself. Hence its pow- 
 ers are expressed in general terms, leaving to the legis- 
 lature from time to time, to adopt its own means to 
 effectuate legitimate objects, and to mould and model the 
 exercise of its powers as its own wisdom and the public 
 interests should require." We have had pressed upon us 
 with much force and eloquence, the tenth amendment to 
 the Constitution, as containing a restriction upon the 
 powers of the government of the United States. Its 
 language is: The powers not delegated to the United 
 States, nor prohibited by it to the states, are reserved to 
 the states or to the people. The same reservation in sub- 
 stance, was contained in the second article of the articles 
 
21 
 
 of confederation, except that the word "expressly" was 
 there placed before the word "delegated." 
 
 The omission of this word in the tenth amendment is 
 most significant, and shows the object was not to inter- 
 fere with or restrict any of the powers delegated to the 
 United States, by the Constitution, whether expressly 
 delegated or not. This is the view taken by the supreme 
 court in the case of McCulloch v. Maryland (supra), 
 where it is said in the opinion that, " there is no phrase in 
 the instrument which, like the articles of confederation, 
 excludes incidental or implied powers, and which requires 
 everything granted shall be expressly and minutely 
 described. Even the tenth amendment, which was formed 
 for the purpose of quieting the excessive jealousies which 
 had been excited, omits the word ' expressly,' and de- 
 clares only that the powers " not delegated to the United 
 States, nor prohibited by it to the states, are reserved to the 
 states or to the people," thus leaving the question whether 
 the particular power which may become the subject of 
 contest, has been delegated to one government or pro- 
 hibited to the other ; to depend on a plain construction of 
 the whole instrument. The men who drew and adopted 
 this instrument had experienced the embarrassments 
 resulting from the insertion of the word in the articles of 
 confederation, and probably omitted it to avoid those em- 
 barrassments. A constitution to contain an accurate 
 detail of all the subdivisions of which its great powers 
 will admit, and of all the means by which they may be 
 carried into execution, would partake of the prolixity of a 
 legal code and could scarcely be embraced by the human 
 mind. It would probably never be understood by the 
 public. Its nature therefore requires that only its great 
 outlines should be marked, its important objects designated, 
 and the minor ingredients which compose those objects, 
 be deduced from the nature of the objects themselves. 
 That this idea was entertained by the framers of the 
 American Constitution, is not only apparent from the 
 nature of the instrument, but from the language." And 
 it is emphatically asked, if this were not so, " Why else 
 
22 
 
 were some of the limitations found in the ninth section of 
 the first article introduced ? There was no express dele- 
 gation of any of these powers to the congress of the 
 United States and the prohibition has no significance or 
 meaning, unless it had been supposed that the powers 
 thus prohibited could have been exercised, unless such 
 prohibition had been made." So also the first eight 
 amendments to the Constitution, are all in restraint of 
 powers, which it was supposed could have been exercised 
 by congress without such prohibitions. None of them 
 are applicable to any of the express powers delegated to 
 congress, but embrace an enumeration of certain implied 
 powers, which it was assumed congress might exercise 
 under the general delegation of powers unless specially 
 prohibited from so doing. The omission in the ninth sec- 
 tion of article first, and in any of these amendments, of 
 any restraint upon or prohibition to congress to legislate 
 upon the subject, of what should or should not be a legal 
 tender, possesses great significance and importance, as we 
 shall hereafter see, when we come to consider that precise 
 point more attentively. It is sufficient here to observe, 
 that the Constitution contains no prohibition upon con- 
 gress from legislating on that subject. It can be hardly 
 necessary to say that the prohibitions contained in the 
 tenth section, which are specially made applicable to the 
 states, have no relation to, and in no sense, impair or affect 
 any of the powers of congress. If these prohibitions 
 were equally binding on congress as upon the states, then 
 they were all prohibited to congress equally. That the 
 trainers of the Constitution did not so regard' it, is conclu- 
 sively shown by the fact that while they prohibited the states 
 from doing several things, among others, not to pass any 
 bill of attainder, ex post facto law, or grant any title of 
 nobility; those three things were only prohibited to the 
 congress, and the reasonable and legitimate deduction 
 from such omission is, that the other things not prohibited 
 to congress were allowed to be exercised by it, if those 
 matters came within the purview of either the express or 
 implied powers granted. This argument is not weakened 
 
23 
 
 by the fact that the Constitution expressly delegated to 
 congress the power to grant letters of marque and re- 
 prisal, aud to coin money, and omitted saying anything 
 on the other matters prohibited to the states. 
 
 Such would seem to have been the view taken by dis- 
 tinguished members of the house of representatives of the 
 United States in the debate on the bill to incorporate 
 the United States Bank, in June, 1811. Mr. Crawford, of 
 Georgia, afterward Secretary of the Treasury, said: "If 
 the state governments are restrained from exercising this 
 right to incorporate a bank, it would appear, ex necessitate 
 rei, that this right is vested in the United States. The 
 entire sovereignty of this nation is vested in the state 
 governments and in the federal government, except that 
 part of it which is retained by the people, which is solely 
 the right of electing their public functionaries." Mr. 
 Alston, a member for South Carolina, said: "In the tenth 
 article, hrst section, it is said, no state shall coin money, 
 emit bills of credit, or make anything but gold and silver 
 coin a legal tender in payment of debts ; the interpretation 
 which I give to it is, that the United States possess power 
 to make anything besides gold and silver a legal tender. 
 If what I conceive to be a fair interpretation be admitted, 
 it must follow that they have a right to make bank paper 
 a legal tender. Much more, then, have they the power 
 of causing it to be received by themselves in payment of 
 taxes." (Elliott's Debates, vol. 4, pp. 367, 368.) These 
 positions do not appear to have been controverted in the 
 debate. 
 
 It seems here appropriate to refer to the provision of 
 the particular act of congress now under consideration. 
 It was passed on the 25th of February, 1862, and is enti- 
 tled "an act to authorize the issue of United States notes, 
 and for the redemption or funding thereof, and for fund- 
 ing the floating debt of the United States." The first 
 section authorized the Secretary of the Treasury "to issue, 
 on the credit of the United States, one hundred and fifty 
 millions of the United States notes," and declared that the 
 same "shall be receivable in payment of all taxes, internal 
 
24 
 
 duties, excises, debts and demands of every kind, due to 
 the United States, except duties on imports, and of all 
 claims and demands against the United States of every 
 kind whatsoever, except for interest upon bonds and notes, 
 which shall be paid in coin, and shall also be lawful money 
 and a legal tender in payment of all debts, public and pri- 
 vate, within the United States, except duties on imports 
 and interest as aforesaid." 
 
 The question presented for decision in these actions is, 
 has congress the power, under the Constitution, to make a 
 law declaring treasury notes, issued by the United States 
 and payable at its treasury, for the redemption of which 
 the credit of the federal government is pledged, and for 
 the payment whereof the entire property of the govern- 
 ment and that of each citizen, which may be reached by 
 taxation, is also pledged, a legal tender in the payment of 
 debts, and lawful money of the United States? 
 
 Before proceeding to the consideration of this question, 
 it will be instructive to revert to the proceedings of the 
 convention which framed the Constitution. 
 
 The second clause of section eight of article first of the 
 Constitution was originally reported in these words: "To 
 borrow money and emit bills on the credit of the United 
 States." This clause coming up for consideration in the 
 convention, Mr. Governeur Morris moved to strike out 
 the words "and emit bills on the credit of the United 
 States," remarking that if the United States had credit, 
 such bills would be unnecessary — if they had not, unjust 
 and useless. Mr. Madison said, will it not be sufficient to 
 prohibit the making them a tender? This will remove the 
 temptation to emit them with unjust views. And pro- 
 missory notes in that shape may, in some emergencies, be 
 best. Mr. Morris replied, that striking out the words will 
 leave room still for notes of a responsible minister, which 
 will do all the good without the mischief. Mr. Gorham 
 was for striking out without inserting any prohibition. He 
 also said, as to congress having the power to issue paper 
 money : "The power, as far as it will be necessary or safe, 
 is involved in that of borro1ving: , 
 
25 
 
 Mr. Mercer was a friend to paper money, and was con- 
 sequently opposed to a prohibition of it altogether. He 
 said " it would stamp suspicion on the government to deny 
 it a discretion on this point." The clause was stricken 
 out (Madison Papers, vol. 3, p. 1343, &c), but no prohi- 
 bition on congress was inserted to issue paper money or to 
 make the same a legal tender. 
 
 Mr. Madison adds in a note at page 1346, that the vote 
 of Virginia in the affirmative was occasioned by the acqui- 
 escence of Mr. Madison, who became satisfied that striking 
 out the words would not disable the government from the 
 use of public notes as far as they could be safe and proper, 
 and would only cut off the pretext for a paper currency, 
 and particularly for making the bills a tender either for 
 public or private debts. 
 
 Mr. Morris subsequently reported the Constitution to 
 the convention and the second clause of section eight was 
 reported as it now stands, the words "on the credit of the 
 United States," which had been erased, having been re- 
 inserted. The power was, therefore, given to Congress to 
 borrow money on the credit of the United States, and it 
 would appear to have been the understanding of the mem- 
 bers of the convention, that such power authorized the 
 issuing of notes or bills by the government. It is undeni- 
 able, that the convention, with its attention particularly 
 directed to the consideration of the question, declined to 
 prohibit their issue, and also declined to prohibit the mak- 
 ing of them a legal tender in payment of either public or 
 private debts. The exigencies of the government at an 
 early day compelled a resort to the power of borrowing 
 money on the credit of the United States, and such power 
 has been exerted and rendered beneficial in the form of 
 treasury notes, issued by it and on the public credit. On 
 the 30th of June, 1812, the first act was passed authorizing 
 the issue of these notes to the amount of $5,000,000, and 
 the sixth section of the act declared that they should be 
 received in payment of all duties and taxes laid by 
 authority of the United States, and of all public lands sold 
 by its authority. These notes, therefore, became a legal 
 
 4 
 
26 
 
 tender for debts of this character due to the United States, 
 and the act was approved by President Madison. 
 
 Issues of treasury notes have been authorized by acts of 
 congress of Feb. 25, 1813; March 4, 1814; Dec. 26, 1814; 
 Oct. 12, 1837 ; Jan. 31, 1842 ; Aug. 31, 1842 ; July 22, 
 1846 ; Jan. 28, 1847 ; Dec. 23, 1857. 
 
 President Madison, in approving the act of June 30, 
 1812, entirely overcame the scruple or doubt suggested by 
 him that the bills which might be issued under the au- 
 thority to borrow money, ought not or could not be made 
 a tender for public debts. That congress possessed that 
 power is now settled by judicial authority. In Thorndike 
 v. The United States (2 Mason, 1, 18), Stokt, J., said: 
 " By the statutes of the United States, under which trea- 
 sury notes have been from time to time issued, it is 
 enacted, that such notes shall be receivable in payment to 
 the United States, for duties, taxes and sales of public 
 lands, to the full amount of the principal and interest 
 accruing due on such notes. It follows, of course, that 
 they are a legal tender in payment of debts of this nature 
 due to the United States, and by the very tenor of the 
 acts, public officers are bound to receive them." 
 
 We find, therefore, a long continued practice on the part 
 of congress in the issue of treasury notes on the credit of the 
 United States, and declaring such notes to be a legal tender 
 in payment of certain debts due to the United States, and 
 the legality of such notes sanctioned by all departments 
 of the government, and the power of congress to issue the 
 same and make them such legal tender, expressly affirmed 
 by the courts. The deductions to be made from such 
 facts will be hereafter adverted to. It should be observed 
 here, that the power to issue treasury notes, on the credit 
 of the United States, was distinctly conceded on the argu- 
 ment by the learned counsel, who appeared in opposition 
 to the act of congress now under consideration. 
 
 Congress have continuously, since the year 1792, exer- 
 cised the power of declaring what shall be a legal tender 
 in payment of private as well as public debts, in reference 
 to a metallic currency. Now, it is conceded that there is 
 
27 
 
 tio express delegation of power to congress to legislate 
 at all, on the subject of legal tender, and, as has been 
 remarked, neither is there any prohibition in the Consti- 
 tution, upon congress, forbidding such legislation, or de- 
 claring what it shall or shall not make a legal tender. 
 This scrupulous omission to make any provision in the 
 Constitution, on this subject, was not accidental. The 
 attention of the convention was particularly attracted to 
 it, as we have seen, and we cannot doubt that the mem- 
 bers of the convention intentionally omitted inserting any 
 provision on the subject, preferring to leave its exercise 
 to the implied powers delegated to congress. It is clear, 
 from the remark of Mr. Madison in the convention, al- 
 ready quoted, that in his opinion congress would have 
 the power to declare bills or notes issued on the credit 
 of the United States, a legal tender, unless prohibited 
 from so doing, by some provision of the Constitution. 
 
 Another significant circumstance as indicating the 
 opinion of the convention that congress had the power 
 to legislate on the subject of legal tender, is found in 
 the fact, that on the 6th of August, 1787, the Constitution 
 as previously agreed upon in the convention, was reported 
 by the committee of detail, nearly in the form it was sub- 
 sequently passed. But article 13th of the then proposed 
 Constitution, declared that "no state, without the consent 
 of the Legislature of the United States, should make any 
 thing but specie a tender in payment of debts." 
 
 This proposed clause of the Constitution, therefore, con- 
 tained a distinct and unequivocal acknowledgment that it 
 would be competent for congress to give its consent to 
 the legislatures of the several states, to make something 
 else than specie a tender in payment of debts. It is also 
 an explicit admission that such a power was vested in 
 congress, and that it, by consent, might permit state 
 legislatures to do the same thing. It is an absurdity to 
 say that congress could consent that the legislatures of 
 the states could do this, and not have the power of doing 
 the thing itself; it of course could not grant to others 
 powers it did not itself possess. On this clause coining 
 
28 
 
 up for final consideration, it was amended by making the 
 prohibition upon the state legislatures peremptory and 
 absolute, as the same now stands in the first subdivision 
 of section ten of article first. The fact that the conven- 
 tion made the prohibition positive upon the states, does 
 not militate at all against the argument derived from the 
 conceded admission, that something else than specie could 
 be made a tender for the payment of debts, with the con- 
 sent of congress. 
 
 This seems an appropriate place to consider the legisla- 
 tion of congress under the powers conferred upon it to 
 coin money, regulate the value thereof, and of foreign 
 coins. It is to be borne in mind, that no express power is 
 given by the Constitution to congress to establish, or 
 make anything a legal tender in payment of debts ; neither, 
 as has been already observed, is there any prohibition 
 contained in the Constitution forbidding legislation by 
 congress on that topic, or declaring what it shall or shall 
 not make a legal tender. The framers of the Constitution 
 could not have been ignorant, that the power to declare 
 what shall or shall not be a legal tender, or, in other 
 words, lawful money of a country, was a necessary inci- 
 dent of sovereignty, and had ever been exercised by the 
 sovereign power in all civilized nations. They were 
 equally cognizant of the fact, that the colonies had inva- 
 riably exercised this power; and that the states, on the 
 application of the continental congress, and pursuant to 
 its recommendation, had made the issue of paper money 
 by the continental congress, for the purpose of carrying on 
 the war of the revolution, a legal tender in payment of 
 debts. This legislation by the states was invoked, be- 
 cause, that congress had no power to legislate on any 
 subject, and such legislation could only be had through 
 the instrumentality of the states. Such weakness and 
 defect, in the powers of the continental congress, were 
 among the controlling reasons for the formation of the 
 new system, brought into being by the Constitution. 
 
 In examining the history of legislation on this subject, 
 we find that the first act of congress relating to legal ten- 
 
29 
 
 der, is that of April 2d, 1792, establishing " the mint for 
 striking and coining gold and silver coins ;" and by § 16, 
 it was enacted, that all the gold and silver coins which 
 shall have been issued from said mint, shall be a lawful 
 tender in all payments whatsoever. The first issue of 
 silver dollars from the mint was not before October, 1794, 
 and of gold coin not before July, 1795, and the whole 
 amount of metallic money issued from 1793 to 1795, was 
 only $463,541.80 in value. To provide a legal medium 
 of commerce, an act was passed on the 9th of February, 
 1793, declaring that from and after the first day of July, 
 1793, foreign gold and silver coins should pass current as 
 money within the United States, and be a legal tender for 
 the payment of all debts and demands, at the several and 
 respective rates therein mentioned and prescribed. This 
 act embraced the coius of Great Britain and Portugal, and 
 of France and Spain, and of the dominions of Spain. 
 
 It was practically the first legal tender act ever passed 
 by congress. 
 
 On the fourth of August, 1790, an act was passed by 
 congress, to provide for the collection of duties, which 
 declared that certain foreign coins therein enumerated, 
 should be received in payment of duties at prescribed 
 rates of value, but did not declare the same should other- 
 wise be a legal tender. This provision of the act of 1790, 
 was repealed by the act of February 9, 1793, the repeal 
 to take effect July 1, 1793. 
 
 Subsequently other acts have been passed by congress 
 from time to time, changing the value of certain foreign 
 coins and making them a legal tender, for the payment of 
 all debts and demands, sometimes by weight and then 
 again by tale. (Act of April 10, 1806; act of March 3, 
 1823, making foreign coins receivable in payment of pub- 
 lic lands ; act of 25th June, 1834, declaring certain foreign 
 silver coins to be of the legal value, and to pass current 
 as money within the United States by tale for the pay- 
 ment of all debts and demands; act of March 3, 1843.) 
 
 By the act of June 28, 1834, foreign gold coins were 
 directed to pass current as money within the United States, 
 
30 
 
 and be receivable in all payments by weigbt, of the fine- 
 ness and at the rates therein mentioned. By the act of 
 January 18, 1837, the standard for both gold and silver 
 coins of the United States, was thereafter to be such, that 
 of one thousand parts by weight, nine hundred should be 
 of pure metal and one hundred of alloy, and the alloy of 
 the silver coins should be of copper, and the alloy of the 
 gold coins should be of copper and silver, provided, that 
 the silver do not exceed one-half of the whole alloy. The 
 weight of the gold and silver coins was prescribed, and 
 they were declared to be legal tenders of payment accord- 
 ing to their nominal value. And it was further provided 
 in and by said act, that the silver coins theretofore issued 
 at the mint of the United States, and the gold coins issued 
 since July 1, 1834, should continue to be legal tenders of 
 payment for their nominal value, on the same terms as if 
 they were of the coinage of that act. 
 
 By the act of 27th February, 1853, the weight of the 
 half-dollar was reduced from 206i grains to 192 grains, 
 and all the coins of lesser denominations in proportion, 
 and they were made legal tenders in payment of debts for 
 all sums not exceeding five dollars. We thus see that 
 congress, since the organization of the government, com- 
 mencing in the presidency of Washington, has exercised 
 plenary power and control over the subject of currency 
 and legal tender laws — it has established the value of cer- 
 tain foreign coins at one time and changed it at another ; 
 has made them a tender in payment of all debts, now by 
 weight, and then again by tale; repealed such laws and 
 enacted them again, sometimes making such coins a legal 
 tender in payment of all debts, and at other times limit- 
 ing them to the payment for public lands or for duties and 
 taxes, also making the evidences of the public debt or 
 stock of the United States a legal tender in payment for 
 public lands. (See act of March 3, 1797.) 
 
 We also see that congress has changed, from time to 
 time, the standard of value of the coins struck by our own 
 mint, debased them by altering the fineness and weight 
 and the relative value of the gold and silver, and making 
 
31 
 
 the debased coins, as well as those of a greater value, not 
 debased, equally a legal tender for the payment of all 
 debts, public and private, at their respective nominal 
 values. 
 
 As has been before observed, there is no express grant 
 of power to congress to make gold and silver or anything 
 else a tender in payment of debts, public or private. It is 
 conceded that congress may properly say what the United 
 States may receive in payment and discharge of debts due 
 to it, and that it may therefore rightfully say in what cur- 
 rency or metals or things payment may be made of them. 
 Admitting this, it is contended that it does not follow that 
 congress has the power to say what shall be a tender and 
 discharge of a debt due from one individual to another. 
 Our review of the legislation of congress has shown us, 
 that under the clause of the Constitution authorizing it to 
 coin money and regulate the value thereof, congress has 
 uniformly declared that the money so coined, and the 
 value of which has thus been regulated, should be received 
 as a legal tender in payment of all debts, equally whether 
 due to the government or to private individuals, and that 
 under the power to regulate the value of foreign coins, 
 it has so, from time to time, regulated and prescribed 
 their value, and made them a legal tender in payment of 
 all debts. It has made coins of unequal intrinsic value 
 and fineness equally a tender in payment of debts at 
 their respective nominal values. 
 
 All these powers have been thus exercised by congress 
 from the foundation of our government, and so far as my 
 investigations have enabled me to say, they have been 
 unchallenged. We are not furnished with any case 
 where they have been questioned by the courts, and what 
 inference such a uniform course of legislation, acquiesced in 
 by the courts and by the country, should have, would seem 
 to be well established. The general rule of construction 
 which has been sanctioned is, that contemporaneous and 
 legislative exposition regarding a power furnishes strong 
 proof of the existence of such power. 
 
32 
 
 Judge Stoky says, in reference to a question of jurisdic- 
 tion of the supreme court: "This weight of contempo- 
 raneous exposition by all parties, this acquiescence of 
 enlightened state courts, and these judicial decisions of the 
 supreme court through so long a period do, as we think, 
 place the doctrine upon a foundation of authority which 
 cannot be shaken without delivering over the subject to 
 perpetual and irremediable doubts." (Martin v. Hunter, 1 
 Wheat., 421.) In Cohens v. Virginia (6 Wheat., 421,) 
 Chief Justice Marshall observed that "this concur- 
 rence of statesmen, of legislators and of judges in 
 the same construction of the Constitution, may justly 
 inspire some confidence in that construction." "An uni- 
 form course of action, involving the right to the exercise 
 of an important power for half a century, and this almost 
 without question, is no unsatisfactory evidence that the 
 power is rightfully exercised." ( Briscoe v. Bank of Ken- 
 tucky, 11 Peters, 257.) 
 
 " The uniform construction given to a provision of the 
 Constitution by the legislature with the silent acqui- 
 escence of the people, including the legal professions and 
 the judiciary, and the injurious results which would 
 come from a contrary interpretation, are proper elements 
 of a legal judgment on this subject." (Per Black, C. J., 
 Moores v. City of Beading, 21 Penn., 188 ; see also Norris 
 v. Clymer, 2 Penn., 277.) 
 
 Maect, J., in Beople v. Green (2 Wend., 274), says: 
 " Great deference is certainly due to a legalized exposition 
 of a Constitutional provision, and especially when it is 
 made almost contemporaneously with such provision, and 
 may be supposed to result from the known views of policy 
 and modes of reasoning, which prevailed among the 
 framers of the instrument expounded." Chancellor Wal- 
 worth, in the case of The Beople v. Coutant (11 Wend., 
 511), said: "Upon a question of real doubt as to the 
 meaning of a particular clause in the Constitution, a legis- 
 lative construction, if deliberately given, is certainly en- 
 titled to much weight, although it is not conclusive upon 
 the judicial tribunals." Many more cases might be cited 
 
33 
 
 in maintenance of the same propositions, but they are 
 entirely unnecessary. Applying these rules to the points 
 now under consideration, no doubt can remain that the 
 early and long continued and uniform practice of congress 
 in passing legal tender enactments were warranted by the 
 Constitution, and the acts thus passed were constitutional 
 and valid. The power to make tender laws by congress 
 is an implied power, and it may be derived from many 
 of the express powers conferred upon that body. If the 
 power exists, then the government is, what it was intended 
 it should be, sovereign, within its own sphere of action, as 
 much so as if this power had been given in express words, 
 and we have seen that congress is expressly authorized by 
 the Constitution to make all laws necessary aud proper to 
 carry this or any other granted power into execution. 
 The general rules of construction apply here, that when 
 a power is granted in general terms, the power is to be 
 construed as co-extensive with the terms of the grant, nor 
 is it to be restricted to particular cases, because it may be 
 susceptible of abuse. 
 
 This point is very ably and conclusively discussed by 
 Judge Story in his work on the Constitution, and as this 
 alleged or anticipated abuse of the power has been much 
 pressed upon us in this argument, as a reason why we 
 should hold that the power does not exist, a more particu- 
 lar reference to the suggestions and reasons of this learned 
 and authoritative commentator may be permitted. In 
 section 425 he says, a power given in general terms is not 
 to be restricted to particular cases merely because it may 
 be susceptible of abuse, and, if abused, may lead to mis- 
 chievous consequences. This argument is often used in 
 public debate, and in its common aspect addresses itself 
 so much to popular fears and prejudices that it insensi- 
 bly acquires a weight in the public mind, to which it is in 
 nowise entitled. * * But the argument from a possi- 
 ble abuse of a power against its existence or use, is in its 
 nature not only perilous, but in respect to governments 
 would shake their very foundation. Every form of gov- 
 ernment unavoidably includes a grant of some discretion- 
 
 5 
 
34 
 
 ary powers. It would be wholly imbecile without them. 
 It is impossible to foresee all the exigencies which may 
 arise in the progress of events, connected with the rights, 
 duties and operations of the government. If they could 
 be foreseen it would be impossible, ab initio, to provide for 
 them. The means must be subject to perpetual modifica- 
 tion and change ; they must be adapted to the existing 
 manners, habits and institutions of society, which are 
 never stationary ; to the pressure of dangers or necessi- 
 ties ; to the ends in view ; to general and permanent 
 operations, as well as to fugitive and extraordinary emer- 
 gencies. In short, if the whole society is not to be revo- 
 lutionized in every critical period, and remodeled in every 
 generation, there must be left to those who administer 
 the government a large mass of discretionary powers capa- 
 ble of greater or actual expansion, according to circum- 
 stances, and sufficiently flexible not to involve the nation 
 in utter destruction from the rigid limitations imposed 
 upon it by an improvident jealousy. Every power, how- 
 ever limited, as well as broad, is in its' own nature suscep- 
 tible of abuse. No Constitution can provide perfect 
 guards against it. Confidence must be reposed some- 
 where ; and in free governments, the ordinary securities 
 against abuse are found in the responsibility of rulers to 
 the people, and in the just exercise of the elective fran- 
 chise, and ultimately in the sovereign power of change 
 belonging to them, in cases requiring extraordinary reme- 
 dies. 
 
 Few cases are to be supposed, in which a power, how- 
 ever general, will be exerted for the permanent oppression 
 of the people, and yet cases may easily be put, in which a 
 limitation upon such a power might be found in practice 
 to work mischief, to incite foreign aggression or encourage 
 domestic disorder. The power of taxation, for instance, 
 may be carried to a ruinous excess ; and yet a limitation 
 upon that power might, in a given case, involve the des- 
 truction of the independence of the country. 
 
 Nothing could be added to the pertinency, cogency or 
 conclusiveness of these views. Mr. Justice Johssos, in 
 
35 
 
 delivering the opinion of the court in Anderson v. Dunn (6 
 Wheat., 204, 220), uses the following apt and expressive lan- 
 guage : " The idea is Utopian that government can exist 
 wthout leaving the exercise of discretion somewhere. Pub- 
 lic security against the abuse of such discretion must rest 
 on responsibility, and stated appeals to public approbation. 
 Where all power is derived from the people and public 
 functionaries at short intervals deposit it at the feet of the 
 people, to be resumed again only at their own wills, indi- 
 vidual fears may be alarmed by the monsters of imagina- 
 tion, but individual liberty can be in little danger." 
 
 If, then, congress has the power to establish a legal 
 tender, is there any constitutional reason why the exercise 
 of the power should be restricted to a particular medium? 
 If congress can coin any metallic substance, under the 
 power to coin money, and stamp it with an arbitrary 
 value, as it is conceded it may, then it follows from the 
 practice of the government, and the rules and principles 
 enunciated, that it can make such stamped metal a legal 
 tender, at any designated value. Intrinsic value of the 
 thing stamped or coined, has nothing to do with the ques- 
 tion of power. Such metals, so stamped, are not issued 
 or put in circulation on the faith or credit of the United 
 States government. No pledge is made to redeem them, 
 and they may possess little or no intrinsic value, yet it is 
 not denied, that such pieces of metal so stamped or coined 
 may be lawfully issued, and made a legal tender, and 
 thus become lawful money of the United States. It is 
 difficult to perceive, if this can be done with pieces of 
 metal, why it is not equally within the power of congress 
 to declare the treasury notes which it may lawfully issue 
 as a circulating medium, and which it may lawfully make 
 a tender in payment of debts due to it, a legal tender also 
 in payment of all debts. These notes are issued on the 
 faith and credit of the whole Union, and the property of 
 which, and of all its citizens, are pledged for their ultimate 
 redemption ; and if the metals may be made a tender, why 
 may not notes equally be made a legal tender in payment 
 of all debts, if the exigencies of the government should 
 
36 
 
 require it to be done, and congress, in its wisdom, should 
 think such necessity existed ? That congress was not con- 
 fined to the use of the precious metals in providing a cur- 
 rency for the people is apparent from the views expressed 
 by Mr. Madison, than whom no man better understood 
 the powers of congress, and the necessities and wants 
 both of the government and the people. In his annual 
 message to congress of Dec. 5, 1815, he says : " The 
 absence of the precious metals, will, it is believed, be a 
 temporary evil, but until they can again be rendered the 
 general medium of exchange, it devolves on the wisdom of 
 congress to provide a substitute, which shall equally engage 
 the confidence and accommodate the wants of the citizens 
 throughout the Union. If the operation of the state banks 
 cannot produce this result, the probable operation of a 
 national bank will merit consideration ; and if neither of 
 these expedients be deemed effectual, it may be necessary 
 to ascertain the terms upon which the notes of the govern- 
 ment (no longer required as an instrument of credit), shall 
 be issued upon motives of general policy as a common 
 medium of circulation." 
 
 History informs us, that the effect of serious and pro- 
 tracted wars is to produce a hoarding and withdrawal of 
 the precious metals from circulation, and a suspension 
 of specie payments on the part of banking institutions. 
 So inevitable is this result that no legislation is effective 
 to prevent it. The Bank of England, with the assent of 
 the privy council, suspended specie payments in 1797, 
 during the war with France, and such suspension con- 
 tinued, with the assent of parliament until in 1823. Par- 
 liament, by the act of May 3, 1797, sought to give currency 
 to the Bank of England notes, and compelled the use of 
 them in payment of debts, by prohibiting the arrest and 
 holding to bail of any person, unless it should appear, that 
 no offer to pay the sum of money claimed, in notes of the 
 Bank of England, payable on demand, had been made. 
 And the act of 3 and 4 William IV, 1833, declared that 
 the Bank of England notes should be a legal tender iu 
 payment of all sums above five pounds. 
 
37 
 
 In the United States, during the war of 1812, the 
 government was compelled to make use of the money of 
 the suspended banks to enable it to carry on the war. 
 The results of that experiment are graphically depicted, 
 by a great statesman of that period, familiar with all the 
 operations of the government, and a principal actor in 
 the events of his day. 
 
 Mr. Calhoun, in his speech in the Senate of the United 
 States on the 16th of January, 1840, on the motion of Mr. 
 Benton to strike out the 19th and 20th sections of the 
 Independent Treasury Bill, the clauses which permitted 
 the reception and disbursement of federal paper, after 
 remarking that he was the friend of the final and complete 
 divorce of the government and the banks, and that if the 
 government should have the blindness to repudiate its 
 own credit, it would go far to defeat the policy of the bill, 
 by restoring in the end, the very union it intended to 
 dissever, said: "The reason is obvious. Paper has to a 
 certain extent a decided advantage over gold and silver. 
 It is preferable in large and distant transactions, and 
 cannot, in a country like ours, be dispensed with in the 
 fiscal actions of the government, without much unneces- 
 sary expense and inconvenience, the truth of which would 
 soon be manifest if the government should consent to dis- 
 pense with the use of treasury drafts. But this is not the 
 only form in which it may be necessary or convenient for 
 it to use its own credit. It may be compelled to use it 
 for circulation in a more permanent form, as the only 
 means of avoiding what I regard a great evil — a federal 
 debt. I am decidedly opposed to government loans. I 
 believe them to be in reality little better than a fraud on 
 the community, if made in bank notes, and highly injuri- 
 ous if made in large amounts in specie. I saw enough in 
 the late war to put me on my guard against them. I saw 
 the government borrow the notes of insolvent banks, the 
 credit of which depended almost exclusively on the fact 
 that they were received and disbursed by the government 
 as money. I saw the government borrow these worthless 
 rags — worthless but for the credit it gave them — at the 
 
38 
 
 rate of eighty for one hundred, that is for every eighty 
 dollars it borrowed of these notes, it gave one hundred 
 dollars of its stock, losing six per cent interest. Still 
 worse, I saw the government, with the view of conciliating 
 the notes of the banks, which were fleecing the commu- 
 nity, permit them to discredit its own paper, by refusing 
 to receive the treasury notes at par, though bearing six 
 per cent interest, for their own worthless trash, without 
 interest, and thus degrading and risking its own credit 
 below that of insolvent banks. All this I saw. 
 
 "Now sir, I hold that it is only by the judicious use of 
 government credit, that a repetition of a similar state 
 of things can be avoided in the event of another war. It 
 may be laid down as a maxim, that without banks and 
 bank notes, large government loans are impracticable, 
 and without some substitute, such loans in the event of 
 war, will be unavoidable. The only substitute will be 
 found to be in the direct use by the government of its own 
 credit. Now, as I regard the borrowing from the banks, 
 not only as one link in the connection between govern- 
 ment and banks, but as inevitably leading to the use of 
 bank notes in the collection and disbursement of the 
 revenue, I also regard the use by the government of its 
 own credit, in the form- of treasury notes, or some other or 
 better form, as indispensable to the permanent success of 
 the policy of this bill. If the government had relied 
 on its credit, instead of loans from the banks, in the late 
 war, if it had then refused to receive and pay away bank 
 notes, as this bill proposes, or had had but the manliness 
 to refuse to receive the notes of banks which refused to 
 receive its own at par, I venture little in saying, that the 
 expenses of the war might have been reduced forty mil- 
 lions. For these reasons I cannot assent that the govern- 
 ment should repudiate the use of its own credit; nor do I 
 believe that such is the sense of this body. Should there 
 be any one of a contrary opinion, let him submit a direct 
 proposition to prohibit the government from the use of its 
 credit. I would be glad to see the vote on such a propo- 
 sition. Instead of being unanimous in its favor, as the 
 
39 
 
 mover of the amendment would have us believe, it is far 
 more probable, it would be nearly so, the other way." 
 
 And in his speech of the 19th of September, 1837, on the 
 bill authorizing the issue of treasury notes, Mr. Calhoun 
 advocated the issue of such notes, without interest, in 
 order to introduce them into general circulation in the 
 place of bank notes. He goes on to state that a paper 
 currency in some form, if not necessary, is almost indis- 
 pensable in financial and commercial operations of civil- 
 ized communities, and that paper issued on the credit of 
 the government is less liable to fluctuation in value and 
 abuse, and that bank notes do not possess these requisites 
 in the same degree ; that paper money ought to rest on 
 demand and supply simply, which regulates the value of 
 everything else; that nothing but experience could deter- 
 mine what amount and of what denomination might be 
 safely issued, and he concludes by saying: "Believing 
 that there might be a sound and safe paper currency 
 founded on the credit of the government exclusively, I 
 was desirous that those who are responsible and have the 
 power, should have availed themselves of the opportunity 
 of the temporary deficit in the treasury." 
 
 It is certainly a matter of great felicitation, that in the 
 present crisis and condition of the country, the government, 
 warned by the evils and the enormous sacrifice attendant 
 upon, and the embarrassments created by the use of the 
 depreciated paper of suspended banks, for the purpose 
 of carrying on the present war waged by the insurgents 
 who are seeking its overthrow, has availed itself of its 
 own credit, and has thus far been abundantly supplied 
 with means to prosecute a war, gigantic in its proportions, 
 and calling for enormous expenditures. 
 
 We have abundant authority, if any were needed, for 
 taking judicial notice of the existence of the present war, 
 of its extent, and of the condition of the country. The 
 Supreme Court of the United States, in the recent prize 
 cases, in the opinion reported in the American Law 
 Magazine for April, 1863, at page 335, say; "They can- 
 not ask the court to affect a technical ignorance of the 
 
40 
 
 existence of a war which all the world acknowledges to 
 be the greatest civil war known in the history of the 
 human race, and thus cripple the arm of the government, 
 and paralyze its powers by subtle definitions and ingeni- 
 ous sophisms." We take notice of the fact, that to main- 
 tain armies and provide a navy for the prosecution of the 
 war, more money is needed annually than all the specie 
 within the United States, and that a resort by the govern- 
 ment, to the use of its own credit, was not only a matter 
 -of necessity, but the result has demonstrated that it was 
 a measure of prudence and wisdom. 
 
 Notwithstanding the vast amounts which have been 
 raised and expended, and the enormous debt created, the 
 credit of the government is now higher than it was at the 
 commencement of the struggle, and a generous and patri- 
 otic people are now daily voluntarily pouring into its 
 treasury, millions of money to aid and enable the govern- 
 ment to preserve, protect and defend the Constitution and 
 the Union. Fortunate will it be for the government and 
 the people, if, on a careful examination, it shall be ascer- 
 tained by the courts that these measures which have pro- 
 duced such benigu and important results, are in harmony 
 with the letter and spirit of the Constitution, and autho- 
 rized by it. We have seen that the issue of treasury notes 
 by the government, upon the faith and credit of the nation, 
 is a lawful means of obtaining money. Instead of using 
 these notes, as was done in the war of 1812, to procure in 
 exchange for them the notes of suspended banks at ruinous 
 rates, to be used as a circulating medium, the advantage 
 is apparent, if the government can legitimately use its own 
 notes for that purpose. The slightest reflection will show 
 that they must be more valuable, and entitled to a higher 
 degree of credit thau the circulating notes of any banking 
 institution. The bills of the latter have only pledged for 
 their ultimate redemption the property of the corporation 
 issuing them, while those of the government, as already 
 observed, have pledged for their redemption the faith and 
 property and revenues of the nation, and that of its citi- 
 zens which may be reached by taxation, the extent of 
 
41 
 
 which has no limits, provided only that it is uniform. We 
 have seen that the notes, so issued by the government, 
 have been, and lawfully might be made, a tender in pay- 
 ment of all debts due to the government, and that the 
 government lawfully used them in payment of all debts 
 owing by it, and received them in payments of all debts, 
 dues, taxes, excises and imposts collected or received by it 
 or due to it. We cannot fail to see that the government 
 in making these payments to its soldiers, who are fighting 
 its battles, to its hardy and brave mariners who are main- 
 taining the honor of their country's flag upon the ocean, 
 and to the various and numerous persons who do work for 
 it, and furnish supplies for it, will but imperfectly have 
 made such compensation and payment, if the notes so 
 paid out cannot be used by the recipients for the pur- 
 pose of discharging debts also due by them. The making 
 such notes, therefore, a legal tender in payment of all 
 debts, gives to them the element of general circulation 
 and credit, and is a means for conferring upon them 
 universal convertibility in payment of all debts. 
 
 If congress possesses this power, we cannot but perceive 
 that its exercise in the present emergency is of incalcu- 
 lable benefit and advantage to the government and the 
 people, whose agent it is. The question then for con- 
 sideration is, whether the provision in the act of February, 
 1862, making these notes a legal tender, was a means use- 
 ful or conducive or adapted to carry into execution any of 
 the powers expressly conferred upon congress. Those who 
 challenge the validity of the act, must show, that at no 
 time, and under no circumstances which may arise, is such 
 a law useful, necessary or proper to aid in the execution 
 of any or all of the powers expressly conferred upon 
 congress. Is such a law necessary to carry into effect 
 any specific power given to congress ? Have these means 
 a natural connection with any specific power ? Are they 
 adapted to give it effect? Are they appropriate means 
 to an end ? Are such means conducive to the exercise of 
 any power granted to congress ? It is believed the doc- 
 trine is so well settled by authority upon this branch of 
 
 6 
 
42 
 
 our discussion, that it cannot be shaken, and that at this 
 day it is not open for debate. Analogous cases will show 
 the extent to which the doctrine has been carried. It is 
 known that the United States, from an early day, have 
 claimed and exercised, by virtue of an act of congress, 
 priority in the payment of all debts due to it by citizens 
 of the several states, over those due to such citizens or 
 to the states. There can be no authority for saying that 
 there is any express grant in the Constitution to congress 
 to declare such priority, yet it was so declared, and has 
 been uniformly sustained and recognized by the courts. 
 In the case of the United States v. Fisher (2 Oranch, 358), 
 the power of the United States congress to declare such 
 priority was ably and instructively discussed by the 
 most eminent counsel of that day, and the opinion of 
 the court by Marshall, Chief Justice, unequivocally 
 affirms the power. He says : "In the case at bar, the pre- 
 ference claimed by the United States is not prohibited ; 
 but it has been truly said, that under a constitution con- 
 ferring specific powers, the power contended for must be 
 granted or it cannot be exercised. It is claimed under the 
 authority to make all laws which shall be necessary and 
 proper to carry into execution the powers vested by the 
 Constitution in the government of the United States, or in 
 any department or officer thereof. 
 
 In considering this clause it would be incorrect, and 
 would produce endless difficulties, if the opinion should be 
 maintained that no law was authorized which was not 
 indispensably necessary to give effect to a specified power. 
 Where various systems might be adopted for that purpose 
 it might be said with respect to each, that it was not 
 necessary, because the end might be obtained by other 
 means. Congress must possess the choice of means, and 
 must he empowered to use any means which are in fact con- 
 ducive to the exercise of a power granted hy the Constitution. 
 The government is to pay the debt of the nation, and 
 must be authorized to use the means, which appear to 
 itself most eligible to effect that object. It has, conse- 
 quently, a right to make a remittance by bills or other- 
 
43 
 
 wise, and to take those precautions which will render the 
 transaction safe. This claim of priority on the part 
 of the United States will, it has been said, interfere 
 with the right of the state sovereignties respecting the 
 dignity of debts, and will defeat the measures they have a 
 right to adopt to secure themselves against delinquencies, 
 on the part of their own revenue officers. But this is an 
 objection to the Constitution itself. The mischief sug- 
 gested, so far as it can really happen, is the necessary con- 
 sequence of the supremacy of the laws of the United 
 States on all subjects to which the legislative power of 
 congress extends." 
 
 The case of McCullocli v. Maryland (supra), claims a 
 more extended and careful examination than it has yet 
 received. No case in the judicial history of the country 
 was ever more carefully and elaborately argued, and the 
 learned and exhaustive opinion of Chief Justice Mar- 
 shall is a model of profound reasoning, evincing an 
 intimate knowledge of Constitutional law and a thorough 
 acquaintance with the structure and principles of our gov- 
 ernment. 
 
 " Monumentum cere perennius." Well might the elo- 
 quent and erudite William Pinckney prophetically say, 
 of this opinion, that he saw in it " a pledge of the immor- 
 tality of the Union." It is an authoritative commentary 
 upon the Constitution and a judicial exposition of its 
 powers and those of the different departments of the 
 government. As such it is to be received and adhered to. 
 
 The question before the court was as to the power of 
 congress to create corporations. It was admitted that no 
 such express power had been delegated to it by the Con- 
 stitution. No slight importance was attached to the cir- 
 cumstance that in the convention which framed the Con- 
 stitution it had been proposed to confer this power 
 expressly, and that the proposition was negatived. Mr. 
 Webster, in his argument, said : "It was not the intention 
 of the framers of the Constitution to enumerate particu- 
 lars. The true view of the subject is, that if it be a fit 
 instrument to an authorized purpose, it may be used, not 
 
44 
 
 being specifically prohibited. Congress is authorized to 
 pass all laws 'necessary and proper' to carry into execution 
 the powers conferred on it. These words ' necessary and 
 proper ' in such an instrument are probably to be con- 
 sidered as synonymous. Necessary powers must here 
 intend such powers as are suitable and fitted to the object ; 
 such as are best and most useful in relation to the end pro- 
 posed. If this be not so, and if congress could use no 
 means but such as were absolutely indispensable to the 
 existence of a granted power, the government would 
 hardly exist ; at least it would be wholly inadequate to 
 the purposes of its formation." 
 
 Mr. Wirt, the attorney-general, arguendo, said, it was 
 not requisite that the particular thing done by congress 
 "should be indispensably necessary to the execution of 
 any of the specified powers of the government. An inter- 
 pretation of this clause of the Constitution, so strict and 
 literal, would render every law which could be passed by 
 congress unconstitutional ; for of no particular law can it 
 be predicated that it is absolutely and indispensably neces- 
 sary to carry into effect any of the specified powers, since 
 a different law might be imagined, which could be enacted, 
 tending to the same object, though not equally well 
 adapted to attain it. As the inevitable consequence of 
 giving this very restricted sense to the word ' necessary,' 
 would be to annihilate the very powers it professes to 
 create; and, as so gross an absurdity cannot be imputed 
 to the framers of the Constitution, this interpretation must 
 be rejected." In relation to the argument, that all powers 
 to be exercised by congress were enumerated in the Con- 
 stitution, Mr. Wirt also observed: "The convention well 
 knew that it was utterly vain and nugatory to give to 
 congress certain specific powers, without the means of 
 enforcing those powers. The auxiliary means, which are 
 necessary for this purpose, are those which are useful and 
 appropriate to produce the particular end ; ' necessary and 
 proper' are there equivalent to needful and adapted. Such 
 is the popular sense in which the word necessary is some- 
 times used. That use of it is confirmed by the best 
 
45 
 
 authorities among lexicographers. Among other defini- 
 tions of the word 'necessary' Johnson gives 'needful;' 
 and he defines 'need' the root of the latter by the words 
 ' want, occasion.' Is a law then wanted, is there occasion 
 for it, in order to carry into execution any of the enume- 
 rated powers of the national government, congress has 
 the power of passing it. To make a law constitutional, 
 nothing more is necessary than that it should be fairly 
 adapted to carry into effect some specific power given to 
 congress. This is the only interpretation which can give 
 effect to this vital clause of the Constitution, and being 
 consistent with the rules of the language, is not to be 
 rejected because there is another interpretation equally 
 consistent with the same rules, but wholly inadequate to 
 convey what must have been the intention of the con- 
 vention. Among the multitude of means to carry into 
 execution the powers expressly given to the national 
 government, congress is to select, from time to time, such 
 as are most fit for the purpose. It would have been 
 impossible to enumerate them all in the Constitution; and 
 a specification of some, omitting others, would have been 
 wholly useless. The court, in inquiring whether congress 
 has made a selection of constitutional means, is to com- 
 pare the law in question with the powers it is intended to 
 carry into execution; not in order to ascertain whether 
 other or better means might have been selected, for that 
 is the legislative province, but to see whether those which 
 have been chosen, have a natural connection with any 
 specific power; whether they are adapted to give it effect; 
 whether they are appropriate means to an end." 
 
 Chief Justice Marshall, in the unanimous opinion of 
 the court, said: "Among the enumerated powers of the 
 government we find the great powers to levy and collect 
 taxes, to borrow money, to regulate commerce, to declare 
 and conduct a war, and to raise and support armies and 
 navies. The sword and the purse, and all the external 
 relations, and no inconsiderable portion of the industry of 
 the nation, are entrusted to its government. It can never 
 be pretended that these vast powers draw after them 
 
46 
 
 others of inferior importance, merely because they are 
 inferior. Such an idea can never be advanced. But it 
 may be with great reason contended, that a government 
 entrusted with such ample powers, on the due execution 
 of which the happiness and prosperity of the nation so 
 vitally depend, must also be entrusted with ample means 
 for their execution. The power being given, it is the 
 interest of the nation to facilitate its execution. It can 
 never be their interest, and cannot be presumed to have 
 been their intention to clog and embarrass its execution, 
 by withholding the most appropriate means." * * * 
 
 "The government which has a right to an act, and has 
 imposed on it the duty of performing that act, must, 
 according to the dictates of reason, be allowed to select the 
 means, and those who contend they may not select any 
 appropriate means, that one particular mode of affecting 
 the object is excepted, take upon themselves the burden of 
 establishing that exception. * * * But the 
 
 Constitution of the United States has not left the right of 
 congress to employ the necessary means for the execution 
 of the powers conferred on the government, to general 
 reasoning. To its enumeration of powers, is added that 
 of making ' all laws which shall be necessary and proper 
 for carrying into execution the foregoing powers, and all 
 other powers vested by this Constitution in the govern- 
 ment of the United States, or in any department thereof.' 
 The counsel for the State of Maryland have urged various 
 arguments to prove that this clause, though in terms a 
 grant of power, is not so in effect ; but is really restrictive 
 of the general right, which might otherwise be implied of 
 selecting means for executing the enumerated powers. 
 * But the argument on which most reliance is 
 placed, is drawn from the peculiar language of this clause. 
 Congress is not empowered by it to make all laws, which 
 may have relation to the powers conferred on the govern- 
 ment, but such only as may be ' necessary and proper' for 
 carrying them into execution. The word 'necessary' is 
 considered as controlling the sentence and as limiting the 
 right to pass laws for the execution of the granted powers, 
 
47 
 
 to such as are indispensable, and without which the power 
 would be nugatory. That it excludes the choice of 
 means and leaves to congress in each case, that only 
 which is most direct and simple. Is it true that this is the 
 sense in which the word ' necessary ' is always used ? 
 Does it always import an absolute physical necessity, 
 so strong, that one thing, to which another may be termed 
 necessary, cannot exist without that other ? We think it 
 does not. If reference be had to its uses, in the common 
 affairs of the world, or in approved authority, we find that 
 it frequently imports no more than that one thing is con- 
 venient, or useful, or essential to another. To employ 
 the means necessary to an end, is generally understood as 
 employing any means calculated to produce the end, and 
 not as being confined to those single means without which 
 the end would be entirely unattainable. Such is the 
 character of human language, that no word conveys to the 
 mind, in all situations, one single definite idea ; aud nothing 
 is more common than to use words in a figurative sense. 
 Almost all compositions contain words, which, taken in 
 their rigorous sense, would convey a meaning different 
 from that which is obviously intended. It is essential to 
 just construction that many words which import some- 
 thing excessive should be understood in a more mitigated 
 sense — in that sense which common usage justifies. The 
 word ' necessary ' is of this description. It has not a fixed 
 character peculiar to itself. It admits of all degrees of 
 comparison ; and is often connected with other words 
 which increase or diminish the impression the mind 
 receives of the urgency it imports. A thing may be neces- 
 sary, very necessary, absolutely or indispensably necessary. 
 To no mind will the same idea be conveyed, by these 
 several phrases. This comment on the word is well illus- 
 trated by the passage cited at the bar, from the 10th sec- 
 tion of the first article of the Constitution. It is, we 
 think, impossible to compare the sentence which prohibits 
 a state from laying 'imposts, or duties on imports or ex- 
 ports, except what may be absolutely necessary for exe- 
 cuting its inspection laws,' with that which authorizes 
 
48 
 
 congress 'to make all laws which shall be necessary and 
 proper for carrying into execution,' the powers of the 
 general government, without feeling a conviction that 
 the convention understood itself, to change materially the 
 meaning of the word 'necessary,' by prefixing the word 
 'absolutely.' This word, then, like others, is used in 
 various senses, and in its construction the subject, the 
 context, the intention of the person using them, are all 
 to be taken into view. Let this be done iu the case 
 under consideration. The subject is the execution of 
 these great powers, on which the welfare of a nation 
 essentially depends. 
 
 "It must have been the intention of those who gave 
 these powers, to insure as far as human prudence could 
 insure, their beneficial execution. This could not be done 
 by confining the choice of means to such narrow limits as 
 not to leave it in the power of congress to adopt any 
 which might be appropriate, and which were conducive 
 to the end. This provision is made in a Constitution 
 intended to endure for ages to come, and consequently 
 to be adapted to the various crises of human affairs. To 
 have prescribed the means by which the government 
 should, in all future time, execute its powers, would have 
 been to change entirely the character of the instrument, 
 and give it the properties of a legal code. It would have 
 been an unwise attempt to provide, by inscrutable rules, 
 for exigencies which, if foreseen at all, must have been 
 seen dimly, and which can be best provided for as they 
 occur. To have declared that the best means shall not 
 be used, but those alone, without which, the power given 
 would be nugatory, would have been to deprive the legis- 
 lature of the capacity to avail itself of experience, to 
 exercise its reason, and to accommodate its legislation 
 to circumstances. * * * This clause as con- 
 strued by the State of Maryland, would abridge, and 
 almost annihilate this useful and necessary right of the 
 legislature to select its means. That this" could not be 
 intended is, we should think, had it not been already con- 
 
49 
 
 troverted, too apparent for controversy. We think so, 
 for the following reasons : 
 
 " 1st. The clause is placed among the powers of con- 
 gress, not among the limitations on those powers. 
 
 "2d. Its terms purport to enlarge, not to diminish the 
 powers vested in the government. It purports to be an 
 additional power, not a restriction on those already 
 granted. 
 
 "No reason has been or can be assigned for thus con- 
 cealing an intention to narrow the discretion of the 
 national legislature, under words which purport to en- 
 large it. The framers of the Constitution wished its 
 adoption, and well knew that it would be endaDgered by 
 its strength, not its weakness. * * * The 
 result of the most careful and attentive consideration 
 bestowed upon this clause is, that if it does not enlarge, 
 it cannot be construed to restrain the powers of congress, 
 or to impair the right of the legislature to exercise its lest 
 judgment, in the selection of measures to carry into execu- 
 tion the constitutional powers of the government. If no 
 other motive for its insertion can be suggested, a suffi- 
 cient one is found in the desire to remove all doubts 
 respecting the right to legislate on that vast mass of inci- 
 dental powers which must be involved in the Constitution, 
 if that instrument be not a splendid bauble. * * * 
 But we think the sound construction of the Constitution 
 must allow to the national legislature that discretion, with 
 respect to the means by which the powers it confers are to 
 be carried into execution, which will enable that body 
 to perform the high duties assigned to it, in the manner 
 most beneficial to the people. Let the end be legitimate, 
 let it be within the scope of the Constitution, and all the 
 means which are appropriate, which are plainly adapted 
 to the end, which are not prohibited, but consist with the 
 letter and spirit of the Constitution, are constitutional." 
 
 We have made these very liberal extracts from this 
 opinion, because the points discussed and decided in it 
 dispose of those principally presented for consideration in 
 the present actions. The attempt would be futile to re- 
 
50 
 
 state them, in language equally clear, appropriate and 
 forcible. The doctrines of this opinion have been recog- 
 nized as the law of this country for nearly half a century, 
 and judicial propriety forbids that the points thus deli- 
 berately decided should again be opened for discussion and 
 examination. They have lately received the approval of 
 the supreme court in the case of The People v. The Tax 
 Commissioners, decided at the last term of that court, in 
 March, 1803 : The principle settled in this case is decisive 
 we think of the present actions. It was there held that con- 
 gress under the power to borrow money, had the power to 
 declare that the stocks or securities issued by the govern- 
 ment of the United States, in the execution of that power, 
 although held as property by citizens of the several states, 
 could lawfully be exempted from taxation, under the laws 
 of the several states. If this immunity can be granted by 
 congress, to the stocks and securities issued by the United 
 States, under the power to borrow money, it is difficult to 
 perceive why congress may not, under the same power, 
 make the treasury notes, issued for that purpose, a legal 
 tender, if it thought that so making them was a means for 
 the more readily accomplishing and making effectual the 
 expressly delegated power. If the one is constitutional, it 
 logically follows that the other is also. 
 
 We accept these expositions of the powers of congress 
 by the supreme court of the United States as unquestiona- 
 able, and we concede that upon all questions arising upon 
 the construction of the federal Constitution the decisions 
 of that court are to be received as authority and final, and 
 they will be followed by the coui'ts of this state, what- 
 ever may be their own views upon the question. Such 
 has been the uniform current of authority in this state. 
 (Hides v. Hotchlciss, 7 John. Ch., 297 ; Mather v. Brook, 
 16 Johns., 233; People v. Piatt, 17 ib., 195; Matter of 
 Wendell, 19 ib., 153 ; McCormick v. Pickering, 4 Comst., 
 276 ; Roosevelt v. Cebra, 17 Johns., 108 ; Cochran v. Van Sorely, 
 20 Wend., 365 ; Kunsler v. Kohans, 5 Hill, 317 ; North 
 River Steamboat Company v. Livingston, 3 Cowen, 713.) 
 
51 
 
 We find therefore the law to be settled that where the 
 power is given to congress to do a particular thing the 
 means necessary and proper for its execution are also dele- 
 gated, and that congress alone is the judge of the meaus 
 most proper to be selected to aid in the execution of the 
 power. The end must be legitimate, that is in good faith, 
 necessary to execute and make effectual some one of the 
 delegated powers, and thus brought within the scope of 
 the Constitution, then all means, which are appropriate, 
 which tend, or are adapted to the end, and which are not 
 prohibited, but are in harmony with the letter and spirit of 
 the Constitution, were also delegated to congress, and 
 may constitutionally be adopted by it. It must be seen 
 that this necessarily is so. The Constitution was framed for 
 all time and for coming ages, and for a great country, and for 
 millions of people. It was to render more perfect a per- 
 petual Union. When framed its constituents were less 
 than four millions. Its benign provisions now afford pro- 
 tection to over thirty millions, and it would be idle to specu- 
 late upon the increase, growth and power which the 
 people, sheltered by its aegis, may yet attain. A Constitu- 
 tion, thus framed for an expanding country, increasing in 
 population, in arts, wealth, and national resources, must 
 necessarily be general in the enumeration of its powers, 
 and all means necessary and proper, in execution of those 
 powers, had also to be left to the exigencies of the times 
 and the wants and necessities of the people, for whose 
 benefit the Constitution was made, and for whose protec- 
 tion it is administered, by their agents. Such an emer- 
 gency, it is believed, had arisen in the prosecution of a 
 war, forced upon the government by the most formidable 
 rebellion known to history. The Constitution and Union 
 must be preserved, protected and defended. 
 
 For this purpose armies and navies had to be provided 
 and maintained, and enormous expenditures incurred. It 
 had been settled that the government had the authority to 
 issue treasury notes upon the faith and credit of the 
 United States, to such an amount and in such denomina- 
 tions as it thought expedient and proper. It was not 
 
52 
 
 doubted that such notes might be used as a circulating 
 medium, and the government had either to use its own 
 notes as such, or upon the credit of them, as in the war of 
 1812, borrow the notes of suspended banks at a ruinous 
 sacrifice and loss, and use them in payment of its army 
 and navy, and for the supplies which it needed. Wisely 
 it is believed congress, determined to rely upon the means 
 and credit of the nation, and do directly what was done 
 heretofore indirectly, and the ruinous consequences of 
 which were so eloquently depicted by Mr. Calhoun. The 
 notes of the government, being thus to be used, and a 
 lawful tender in payment of all debts due to the United 
 States, were not the powers conferred upon congress ren- 
 dered more effectual by making them a legal tender in 
 payment as well of private as of public debts ? As a 
 simple question of power as already suggested, it is not 
 apparent why congress had not the same power to make 
 them a legal tender in the one case as in the other. It 
 was certainly never intended by the founders of the gov- 
 ernment that it was to have a currency for itself and a 
 different one for the people. 
 
 The provision that all taxes should be uniform, is indi- 
 cative of the idea that the currency of the country should 
 be uniform also, and it is not believed that this important 
 and express injunction of the Constitution can be observed 
 unless the currency be uniform throughout the United 
 States. The effect of making our own coins and foreign 
 coins a legal tender in payment of debts, has been to make 
 them of uniform value throughout the United States, and 
 the same result is attained by making Treasury notes a 
 legal tender. That which is a legal payment to the soldier 
 in tbe field, the laborer who toils for the government, or 
 the farmer or mechanic who supplies it with the products 
 of his farm or workshop, is equally available to them to 
 discharge debts which they owe. If this were not so, it is 
 plainly to be seen that the notes of the government must 
 remain in the hands of those to whom they are first paid, 
 or be parted with by them at great loss. To obviate all 
 these inconveniences and difficulties, congress has declared, 
 
53 
 
 when it authorized the issue of these notes, that they 
 should be a legal tender as well for private as public 
 debts, adopting this as a means to give full effect to the 
 power it possessed of borrowing money, and to raise and 
 support an army and navy, and to levy and collect taxes. 
 It cannot be denied that the end sought to be attained is 
 legitimate, that it is within the scope and spirit of the 
 Constitution, and it is for congress to select the appro- 
 priate means, and if they are adapted to the end and not 
 prohibited, they are constitutional. It is not the province 
 of the judiciary to say that the lest means have not been 
 adopted, or that those adopted were indispensable. The 
 range of selection of means rests solely in the discretion of 
 congress, and if that discretion is unwisely exercised, the 
 remedy is by a change of members of that body and a 
 repeal of the law. 
 
 A similar principle has been declared by the courts of 
 this state in an analogous case. By section 1 of article 1 
 the Constitution of this state, it is declared that corpora- 
 tions may be formed under general laws, and shall not be 
 created by special act, except in cases where, in the judg- 
 ment of the legislature, the objects of the corporation can- 
 not be attained under general laws. By this provision of 
 the Constitution it is left to the legislature to decide 
 whether the objects of a corporation can be attained 
 under a general law. It is well settled in this state that 
 whether a special act of incorporation is necessary or not, 
 is a matter entirely for the judgment and discretion of the 
 legislature, and that the courts have no power to review 
 this action of the legislature. (MoslierY. Hilton, 15 Barb., 
 657 ; United States Trust Co. v. Brady, 20 Barb., 119 ; 
 People v. Bowen, 30 Barb., 24.) These two last cases have 
 been affirmed in this court. (21 1ST. Y. Eep., 517.) 
 
 It must certainly be conceded that the choice of means, 
 in the present case, is more clearly legitimate than those 
 selected by congress, in other instances, in the exercise of 
 its delegated powers, and if such means were constitu- 
 tional, it is not perceived why those adopted, in the act 
 under consideration, will not stand the same test. We 
 
54 
 
 have seen that under the power to coin money and regu- 
 late the value thereof, congress has, unquestioned, since 
 the organization of the government, made the money so 
 coined a legal tender in payment of all debts. So under 
 the clause to regulate the value of foreign coin, in like 
 manner, it has made such foreign coin a legal tender. In 
 pursuance of the authority to borrow money on the credit 
 of the United States, it issued treasury notes and made 
 them a legal tender in payment of all debts due the United 
 
 States. 
 
 So, in virtue of the authority to pay the debts of the 
 Union, it has been held by the supreme court, that con- 
 gress might lawfully give to all debts due to the United 
 States a priority of payment over debts due to the states, 
 or to any citizen. For instance, the Constitution confers 
 on congress the power to declare war. Now the word 
 ' ' declare ' ' has several senses. It may mean to proclaim , or 
 publish. But no person would imagine that this was the 
 whole sense in which the word is used in this connection. 
 It should be interpreted in the sense in which the phrase 
 is used among nations, when applied to such a subject 
 matter. A power to declare war is a power to make and 
 carry on war. It is not a mere power to make known an 
 existing thing, but to give life and effect to the thing itself. 
 (1 Story Const., § 428, and Bas v. Tingey, 4 Dall., 37.) 
 And the true doctrine has been expressed by the supreme 
 court. "If from the imperfection of human language, 
 there should be any serious doubts respecting the extent 
 of any given power, the objects for which it was given, 
 especially when those objects are expressed in the instru- 
 ment itself, should have great influence in the construc- 
 tion." (Gibbons v. Ogden, 9 Wheat., 188, 189.) No power 
 is given in express terms to congress, to exact or require 
 an oath from any officer of the government, or any security 
 for the faithful discharge of the duties of an office. Yet 
 we are well aware that such securities have been required 
 by virtue of many acts of congress, and in numerous 
 instances have been enforced against the sureties. The 
 power vested in congress, may certainly be carried into 
 
55 
 
 execution without prescribing an oath of office. The power 
 to exact this security for the faithful performance of duty 
 is not given, nor is it indispensibly necessary. All the 
 powers delegated to congress may be exercised without 
 requiring an oath of office. It might be argued, with as 
 much plausibility as other incidental powers have been 
 assailed, that the convention was not unmindful of this 
 subject. The oath which might be exacted — that of 
 fidelity to the Constitution — is presented, and it may be 
 contended that no other can be required. Yet, he would 
 be charged with insanity, who should contend that the 
 legislature might not superadd to the oath, directed by the 
 Constitution, such other oath of office as its wisdom might 
 suggest. (M' Cullocli v . Maryland, siqrra.) 
 
 So with respect to the whole penal Code of the United 
 States. Whence arises the power to punish in cases not 
 prescribed by the Constitution ? All admit that the gov- 
 ernment may legitimately punish any violation of its laws, 
 and yet this is not among the enumerated powers of con- 
 gress. The right to enforce the observance of law, by 
 punishing its infraction, might be denied with the more 
 plausibility, because it is expressly given in some cases. 
 Congress is empowered to provide for the punishment of 
 counterfeiting the securities and coin of the United States, 
 and to define and punish piracies and felonies committed 
 on the high seas, and offences against the law of nations. 
 The several powers of congress may exist in a very imper- 
 fect state, to be sure, but they may exist and be carried 
 into execution, although no punishment should be in- 
 flicted in cases where the right to punish is not expressly 
 giveu. Take, for example, the power to establish post 
 offices and post roads. This power is executed by the 
 single act of making the establishment. 
 
 But from this has been inferred the power and duty of 
 carrying the mail along the post roads, from one post 
 office to another. And from this implied power has again 
 been inferred the right to punish those who steal letters 
 from the post office, or rob the mail. It may be said with 
 some plausibility, that the right to carry the mail and to 
 
56 
 
 punish those who rob it, is not indispensably necessary to 
 the establishment of a post office and post road. The right 
 is, indeed, essential to the beneficial exercise of the power, 
 but not indispensably necessary to its existence. So of 
 the punishment of stealing or falsifying a record or pro- 
 cess of a court of the United States, or of perjury in such 
 courts. To punish these offences is certainly conducive 
 to the due administration of justice, But courts may 
 exist and may decide the causes brought before them, 
 though such crimes escape punishment. (Per Marshall, 
 Chief Justice in McCulloch v. Maryland, supra.) 
 
 The case of the United States v. Marigold (9 How., 560), 
 is an important one upon the point now under discussion. 
 In that case the prisoner was indicted and convicted of 
 the crime of having brought into the United States false, 
 forged and counterfeited coin, in the resemblance and 
 similitude of the gold and silver coins of the United States 
 coined at its mint, knowing the same to be false, forged 
 and counterfeited, with intent to utter, publish and pass 
 the same. This was in violation of the 20th section of the 
 Crimes Act of 3d March, 1825. 
 
 Justice Daniel, in delivering the opinion of the court, 
 says: "Congress are, by the Constitution, vested with 
 the power to regulate commerce with foreign nations ; and 
 however, at periods of high excitement, an application of 
 the terms ' to regulate commerce,' such as would embrace 
 absolute prohibition, may have been questioned, yet, 
 since the passage of the embargo and non-intercourse 
 laws, and the repeated judicial sanctions those statutes 
 have received, it can scarcely, at this day, be open to 
 doubt, that every subject falling within the legitimate 
 sphere of commercial regulation may be partially or wholly 
 excluded, where either measure shall be demanded by the 
 safety or by the important interests of the entire nation." 
 He further says : " Whatever functions congress are, by 
 the Constitution, authorized to perform, they are, when the 
 public good requires it, bound to perform ; and on this 
 principle, having emitted a circulating medium, a stan- 
 dard of value, indispensable for the purposes of the com- 
 
57 
 
 munity and for the action of the government itself, they 
 are accordingly authorized and bound in duty to prevent 
 its debasement and expulsion." He also says : " We 
 trace both the offence and the authority to punish it to the 
 power given by the Constitution to coin money, and to 
 the correspondent and necessary power and obligation to 
 protect and to preserve in its purity this constitutional 
 currency for the benefit of the nation. While we hold it a 
 sound maxim that no powers should be conceded to the 
 federal government, which cannot be regularly and legiti- 
 mately found in the charter of its creation, we acknowledge 
 equally the obligation to withhold from it no power or 
 attribute which by the same charter has been declared 
 uecessary to the execution of expressly granted powers, 
 and to the fulfillment of clear and well defined duties." 
 
 We think it has been demonstrated, that as congress 
 has the power to issue treasury notes on the credit of the 
 United States, if it be necessary to render such notes 
 effectual for the purposes for which they are issued, that 
 they should be made a legal tender in payment of all 
 debts; that congress may, in its discretion adopt such 
 means to carry out a delegated and conceded power. 
 That such necessity existed to make the notes so issued, 
 a legal tender, is evidenced by the action of the executive 
 and legislative departments of the government. 
 
 It is no unimportant consideration, in support of the 
 act of congress making the government notes a legal 
 tender in payment of private debts, that such tender in- 
 sures uniformity in the currency, and puts all creditors 
 on an equality. The soldier, who earns his dues by peril- 
 ous services, and those who aid the government in fur- 
 nishing it with labor or materials, are compelled to take 
 this currency, and by this act it is available equally to 
 them in discharge of their debts. Those whose patriotism 
 leads them to serve or trust the government of the coun- 
 try, are not compelled to do so, on any less advantageous 
 terms, than those who labor for or trust private citizens. 
 If there is any hardship in receiving the notes of the 
 nation, it falls equally on all, and if it be a contribution 
 8 
 
58 
 
 for the support and maintenance of our liberties, it is 
 equally made by all in exact proportion to the means 
 which each possesses. 
 
 Again, it is urged that this act of congress is unconsti- 
 tutional and void, as it impairs the obligation of contracts. 
 To arrive at this result, it is argued, that as the bond and 
 mortgage mentioned in the second action, were made 
 before the passage of the act, and by their terms, the 
 amount secured thereby was payable in lawful money of 
 the United States, the obligation is impaired, by some- 
 thing being made lawful money which was not such at the 
 time the contract was made. In the bank cases, it does 
 not distinctly appear when the bills, payment of which 
 were demanded in gold and silver, were issued; but 
 assuming that they were issued anterior to the passage 
 of the act then the same question is presented as that 
 which arises upon the bond and mortgage. 
 
 While all must concede that legislation on the part of 
 congress which should, in effect, impair the obligation of a 
 contract, would be unjust and to be deprecated, yet it is also 
 apparent that there is no constitutional prohibition upon 
 legislation of that character. The prohibition contained 
 in the Constitution is applicable only to the states. This 
 point was expressly decided by Judge Washington, in 
 Evans v. Eaton, 1 Peters 0. 0. Rep., 322. He said there 
 is nothing in the Constitution of the United States, which 
 forbids congress to pass laws violating the obligation of 
 contracts, although such a power is denied to the states. 
 Congress in the exercise of its delegated powers, may 
 unquestionably pass laws, the effect of which would un- 
 doubtedly be to impair or aifect the validity of contracts. 
 An act declaring war would annul a vast amount of con- 
 tracts, based on a contemplated peace, yet the power to 
 declare war by congress is undoubted, and the effect its 
 exercise would have on existing contracts could in no 
 manner circumscribe or affect the exercise of the power. 
 
 The embargo acts, passed during the administration of 
 Mr. Jefferson, not only impaired but destroyed numerous 
 contracts, entered into upon the assumption that commer- 
 
50 
 
 cial relations were to continue uninterrupted, but the acts 
 were adjudged to be constitutional on the ground that the 
 power to make them was incidental to and a corollary from 
 the right to regulate commerce. The bankrupt act of 
 1841 impaired the obligation of contracts in the most 
 decided manner, yet the law was held to be constitutional 
 under the general power granted to congress. In mat- 
 ter of Kleim (1 How. S. 0., 277), Judge Cateon said that 
 the reason why the power to pass bankrupt laws was given 
 to congress was to secure to the people of the United 
 States, as one people, a uniform law by which a debtor 
 might be discharged from the obligation of his contracts, 
 and his future acquisitions exempted from his previous 
 engagements; that the right of debtor and creditor equally 
 entered into the mind of the framers of the Constitution. 
 The great object was to deprive the states of the danger- 
 ous power to abolish debts. Few provisions of the Con- 
 stitution have had more beneficial consequences^than this, 
 and the kindred inhibition on the States that they should 
 pass no law impairing the obligation of contracts. In 
 Kenzler v. Kohans (5 Hill, 325), Cowen, J., in delivering 
 the opinion of the court, says: "The directly granted 
 power over bankruptcies, however, carries the incidental 
 authority to modify such obligation, so far as the modifi- 
 cation may result from a legitimate exercise of the dele- 
 gated power. Having satisfied myself that it is plenary 
 and with a single qualification, viz., uniformity, entirely 
 equal to the power of parliament, I shall devote very little 
 time to the inquiry what that may be. No one will deny 
 that parliament may modify and discharge the obligation 
 of contracts in exercising the powers over bankrupts and 
 their creditors. Such a power is, indeed, prohibited to the 
 states." See also Thompson v. Alger (12 Metcalfe, 442.) 
 It follows, therefore, that if congress had the constitutional 
 power to pass the act of February 25, 1862, it is not 
 in conflict with the Constitution, and therefore void, for 
 the reason that the effect of the act may be to impair the 
 obligation of contracts. 
 
60 
 
 But it is correctly argued that such is not the legitimate 
 effect of the act, and that the obligation of no contract is 
 impaired by it. Take, for instance, the contract contained 
 in the bond and mortgage — it is to pay the sum of $8,000 
 in lawful money of the United States. Now what was 
 lawful money at the time the debt was payable or paid, or 
 tender of payment made, if so used for such purpose, would 
 be a compliance with or fulfillment of the terms of the con- 
 tract. Such would seem to be the uniform current of 
 decision, and such was the rule of law recognized at a very 
 early period. In the case of Faw v. Marteller (2 Oranch, 20), 
 where Faw had, in the year 1779 covenanted to pay as 
 rent yearly, well and truly, the sum of twenty-six pounds, 
 Virginia currency, which consisted at that time of paper 
 money, but it was withdrawn from circulation by a law of 
 1781, and it was claimed that the sum contracted to be 
 paid was paper money and not specie, on the ground that 
 paper money was lawful currency when the debt was 
 contracted. Chief Justice Marshall, in delivering the 
 opinion of the supreme court, however, said: "This can 
 only mean money current at the time the rents shall 
 become payable. It cannot be contended that he could 
 satisfy the terms of the lease by paying the rents in 1782 
 in paper currency." He further said: "The position, then, 
 that the value of the money at the time when the con- 
 sideration for which it was to be paid was received, is the 
 standard by which the contract is to be measured, is not a 
 correct one." 
 
 Dowmans v. Don-mans Exrs. (1 Wash. Virg. Eep., 26), 
 was a suit on a bond for £53, payable in Virginia currency, 
 to which the defendant plead a tender. The court of 
 appeals of Virginia held that the tender must be money 
 current at that time, (that is, the time the tender is made,) 
 otherwise it is not money at all. There was no paper 
 money current as money in April, 1790, when this plea 
 was offered, and the tender was held bad although made 
 in the currency named in the bond. In Poug v. Be Lind- 
 say and others (1 Dyer, 82 A.), in debt on bond for pay- 
 ment of £24 sterling, plea of tender, that at the time of 
 
61 
 
 the payment of said sum of money, certain money was 
 current in England in the place of sterlings called pollards, 
 viz., two pollards for one sterling, and that at the day 
 aforesaid, the defendant tendered a moiety of said debt in 
 pollards, and the tender was held good, and the note of 
 the case is ; that if, at the time appointed for payment, a 
 base money is : current in lieu of sterling, tender at the 
 time and place of that base money, is good, and the credi- 
 tor can recover no other. A case is also cited from the 
 year books (11 H. VII, 5 b.) where one is to pay at such a 
 day five quarters of wheat ; at the day of the contract they 
 were worth fifty pounds, at the day of payment five 
 pounds. The judgment shall be that he recover five quar- 
 ters of wheat or five pounds. And the defendant may 
 deliver the wheat if he please, but the sum of money 
 ought, of necessity, to be referred to the day of the pay- 
 ment. 
 
 Queen Elizabeth, in order to pay the royal army, which 
 was maintained in Ireland for several years, to suppress 
 the rebellion of Tyrone, caused a great quantity of mixed 
 money, with the usual stamps of the arms of the crown 
 and inscription of her royal stile, to be coined in the 
 tower of London, aud transmitted that money to that 
 kingdom, with a proclamation dated May 24, in the 43d 
 year of her reign, by which she declared and established 
 this mixed money, immediately after the said proclamation, 
 to be lawful and current money of the kingdom of Ireland, 
 and expressly commanded that this money should be so 
 used, accepted and reputed by all her subjects and others 
 using any traffic or commerce witbin the kingdom. In 
 April before the proclamation was issued, when tbe pure 
 coin of England was current in the kingdom of Ireland, 
 one Brett, a merchant of Drogheda, bought certain goods 
 of one Gilbert in London, and became bound in an obliga- 
 tion in the penal sum of £200, on condition to pay to said 
 Gilbert, his executors, &c, one hundred pounds sterling, 
 current and laivful money of England, at which day, &c, 
 Brett made a tender of the £100 in the mixed money of the 
 new standard, in performance of the condition of the obli- 
 
62 
 
 gation; and the question before the council was on the 
 petition of said Gilbert to the privy council in Ireland, 
 whether the defendant Brett should now, upon the change 
 or alteration of money within the kingdom, be compelled 
 to pay the said one hundred pounds in other or better 
 coin than in the mixed money, according to the rate and 
 valuation of it, at the time of the tender. 
 
 And inasmuch as the case related to the kingdom in 
 general, and was also of great importance in considera- 
 tion and reason of state, the Lord Deputy required the 
 chief judges (being of the privy council) to confer on and 
 consider the case, and return to him their resolution touch- 
 ing it, who on consideration of all the points resolved that 
 the tender of the one hundred pounds in mixed money was 
 good and sufficient in the law to save the forfeiture of the 
 bond, and that the defendant should not be obliged, at 
 any time after to pay any other money, in discharge of 
 the debt, than this mixed money, according to the rate and 
 valuation it had at the time of the tender; and thereupon, 
 it was resolved, by the privy council, among other things, 
 that though at the time of the contract and obligation 
 made in the present case, pure money of gold and silver 
 was current within this kingdom (Ireland) where the place 
 of payment was assigned, yet the mixed money, being 
 established in this kingdom before the day of payment, 
 may well be tendered in discharge of the said obligation, 
 aud the obligee is bound to accept it; and if he refuses 
 it and waits until the money he changed again, the obligor 
 is not bound to pay other money of better substance; but 
 it is sufficient, if he be always ready to pay the mixed 
 money according to the rate for which they were current 
 at the time of the tender; and this point was resolved, on 
 consideration of two circumstances, viz.: the time and 
 place of the payment, for the time is the future, viz.: that 
 if the said Brett, shall pay or cause to be paid £100 ster- 
 ling, current money, &c, and therefore snch money shall 
 be paid, as shall be current at such future time; so that 
 the time of payment, and not the time of the contract, 
 shall be regarded." (Davies Rep., page 28.) To the same 
 
03 
 
 point is the case of Harrington v. Potter, Dyer, 81 b., fol. 
 67. After the fall and debasement of money, in 5 Ed. VI, 
 debt was brought against executor of lessee for years, for 
 rent arrears for two years, which fell due at Mich, term, 
 2 Ed. VI. The lease was dated on the 21st of November, 
 in the thirty-first year of Henry VIII. At the time the rent 
 fell due, the shillings, which at the time the action was 
 brought were decried to 6d., were current at 12d. The 
 defendant pleaded tender of the rent, at the days when it 
 was due, in pedis monetee, angliece vocat shillings, and said 
 that every shilling at the time of the tender was payable 
 for 12d., but that plaintiff, nor any one for him, was ready 
 to receive it, and concludes that he is uncore prist to pay 
 the currency, indictis pedis vocat shillings secundum ratum, 
 &c. The plaintiff demurred, but afterwards accepted the 
 money secundum ratum predictum, without costs or dama- 
 ges. If money be made current by proclamation, at a 
 higher rate than its intrinsic value, a tender in such money, 
 according to its current value, is good. If a foreign coin 
 be made current in this kingdom by proclamation, a tender 
 in such money is good, for it thereby becomes lawful 
 money of the kingdom. (Bacon Ab., Tender, b. 2, vol. 7, 
 p. 325.) An obligation to payment generally is discharged 
 by a payment in legal currency. (Per Marshall, Chief 
 Justice, in U. S. v. Robertson, 5 Peters, 644.) 
 
 In James v. Stull (9 Barb., 482 ; affirmed in the court of 
 appeals in 1852,) it was held that where a mortgagor 
 authorized the mortgagee, in case of default, to proceed 
 and sell the mortgaged premises " according to law," it 
 means the law in existence at the time of sale, not that in 
 existence at the date of the mortgage, and that a law, 
 passed after the date of the mortgage, prescribing a shorter 
 time of sale than that existing at the date of the mort- 
 gage was not repugnant to the Constitution of the United 
 States, as impairing the obligation of contracts. (See 
 also Conlceij v. Hart, 4 Kern., 22 ; Mason v. Maile, 12 
 Wheaton, 370.) 
 
 We have arrived, therefore, at the conclusion, that the act 
 of congress under consideration is not obnoxious to the im- 
 
64 
 
 putation that it impairs the obligation of contracts. The 
 notes of the respondents, and the bond and mortgage, 
 were each payable in lawful money of the United States, 
 and we have seen by a uniform current of authority that 
 what is lawful money at the time of payment, or at the 
 time of tender of payment, is the lawful money, intended 
 and referred to in the obligation. Such money, thus 
 lawful at the time of payment or tender, can be used to 
 discharge the obligation. It has universally been so held, 
 in all cases, where the coin has been debased or changed 
 intermediate the date of the contracts and the time of 
 payment. 
 
 Take the case, so forcibly put by one of the learned 
 counsel in this case. It was contended that the bond 
 stipulated for so much gold. It however speaks of a re- 
 payment of $8,000 of lawful money of the United States. 
 Let the theory be tested. If a debt was owing of one 
 thousand dollars, and the debtor, tendered to his creditor, 
 in payment of this sum ninety-four eagles struck and 
 coined before 1834, which, as to quantity and value of 
 gold contained in them are equal to one hundred eagles 
 struck and coined after 1834, would this be a legal or lawful 
 tender ? If the sufficiency of the tender consists in the 
 fact of the amount of gold tendered it certainly would, 
 but if it is to be determined by the amount of lawful 
 money, it clearly would not. The court must hold that 
 the debtor contracted to pay the one thousand dollars, 
 lawful money of the United States, and that such obliga- 
 tion is not discharged by the payment of $940 in gold, 
 though those pieces tendered might contain the same 
 amount and value of gold, as one thousand dollars of 
 lawful money, in coin, contains. 
 
 It is the lawful money of ^he United States, made such 
 by its authority, that can only be effectually used, in pay- 
 ment of debts, without reference to the intrinsic value of 
 the thing tendered or paid. It cannot but be a matter of 
 congratulation, that our government, when it had a rebel- 
 lion to put down, far more formidable than thatof Tyrone, 
 in Ireland, instead of imitating the bad example of the 
 
65 
 
 British government, by debasing the coin, and issuing 
 mixed money, and making it a legal currency; availed 
 itself of its constitutional right, of issuing money on the 
 faith and credit of the nation, for the redemption of which 
 the whole property thereof is pledged. Such money will 
 ultimately be redeemed by the precious metals on the 
 resumption of specie payments, a day not far distant, we 
 may hope if we read correctly the auspicious indications 
 of the times. 
 
 We have endeavored to bring to the consideration of 
 the question presented in these cases, all the delibera- 
 tion and care, which its great importance demanded. It 
 has appeared to us, that the great principles which con- 
 trol them have long been settled by the supreme court of 
 the United States, and that applying those doctrines to the 
 cases under consideration, the result is inevitable, and not 
 doubtful. Our aid has been invoked, to declare unconsti- 
 tutional and void, an act of the congress of the United 
 States, passed after grave deliberation, with the concur- 
 rence of some of the most eminent men of the country ; 
 passed in a crisis of our national affairs, when it was 
 deemed by the legislative and executive departments of the 
 government vital to our national existence. No tribunal 
 can approach such a question without a deep sense of its 
 importance and of the grave responsibility involved in its 
 decision. We must not fail to reflect upon the univer- 
 sality of the rule, that whenever the constitutionality of a 
 law of congress or of a state legislature is involved, the 
 legal presumption exists in favor of its validity. There is 
 this distinction to be made in considering an act passed 
 by the legislature of the state, and one passed by the con- 
 gress of the United States. In reference to a state law, 
 the question of its constitutionality depends upon whether 
 the act falls within any of the express or implied prohibi- 
 tions of either the state or national Constitutions. In 
 passing upon the constitutionality of an act of congress, 
 the question is, whether the act is embraced within any 
 of the great powers expressly granted to Congress, or may 
 be included among the more numerous and incidental 
 9 
 
66 
 
 powers, and the means which are legitimate and appro- 
 priate to carry these powers into execution. But in both 
 classes of cases, the obvious and natural intendment must 
 be indulged in favor of the law arising from the fact that 
 it has received the approval both of the legislative and 
 executive departments of the government, the depart- 
 ments charged with the duty of making laws, the incum- 
 bents of which have given their sanction to the law, acting 
 under a sense of then- official responsibility and the obli- 
 gations of an oath to support the Constitution. It is, 
 therefore, a well-settled rule, prescribed in adjudged cases, 
 for the action of the courts, that a law which has been 
 regularly enacted, must not be set aside by the judiciary 
 rashly, or inconsiderately, or for light causes, or because 
 they may have doubts of its wisdom or necessity ; that 
 every doubtful question is to be thrown in favor of the 
 law, and that it can only be adjudged void when its repug- 
 nancy to the Constitution is plain and clear. (Morris v. 
 The People, 3 Denio, 381 ; ex parte McCollom, 1 Cowen, 
 564 ; Fletcher v. Peck, 6 Cranch, 87 ; Ogden v. Sanders, 12 
 Wheat., 29 ; Adams v. Howe, 14 Mass., 345.) 
 
 Chief Justice Savage, in ex parte McCollom (supra), 
 says : " Before the court will deem it their duty to declare 
 an act of the legislature unconstitutional, a case must be 
 presented in which there can be no rational doubt." And 
 Chief Justice Marshall, in Fletcher v. Peck (supra), 
 said: "It is not on slight implication and vague conjec- 
 ture, that the legislature is to be pronounced to have 
 transcended its powers and its acts to be considered void. 
 The opposition between the Constitution and the law 
 should be such, that the judge feels a clear and strong 
 conviction of their incompatibility with each other." 
 Judge Lott, in the case of Morris v. The People (supra), 
 said: "The presumption is always in favor of the validity 
 of a law, if the contrary is not clearly demonstrated." 
 Parker, C. J., in Adams v. Howe (supra), said: "We 
 must premise, that so much respect is due to any legis- 
 lative act, solemnly passed and admitted into the statute 
 book, that a court of law, which may be called upon to 
 
67 
 
 decide its validity, will pronounce it to be constitutional, 
 unless the contrary clearly appears. So that in any case, 
 substantially admitted, the law will have its force. The 
 legislature is in the first instance, the judge of its own 
 constitutional powers, and it is only when manifest as- 
 sumption of authority or misapprehension of it, shall 
 appear, that the judicial power will refuse to execute it. 
 Whenever such a case happens, it is among the most 
 important duties of the judicial power, to declare the 
 invalidity of an act so passed." A legislative act is not 
 to be declared void upon a mere conflict of interpretation 
 between the legislative and judicial powers. Before pro- 
 ceeding to annul by judicial sentence, what has been 
 enacted by the law-making power, it should clearly ap- 
 pear that the act cannot be supported by any reasonable 
 intendment or allowable presumptions. (People v. Super- 
 visors of Orange, 17 N". Y. Rep., 235.) 
 
 It is urged by the counsel for the appellant, in the first 
 above entitled cause, that as the Constitution of this state 
 declares that the legislature shall provide by law for the 
 registry of all bills and notes, issued or put in circulation 
 as money, and shall require ample security for the re- 
 demption of the same in specie (sec. 6 of art. 8), it is not 
 lawful to redeem the same in anything else than specie. 
 A complete answer to this argument is, that the legis- 
 lature have never acted under this injunction of the Con- 
 stitution. As already observed, the provision of law in 
 this state is, that the bills of the banking associations are 
 to be redeemed in lawful money of the United States, and 
 if the same are redeemed, or offered to be redeemed, in 
 such lawful money, the bank superintendent has no 
 authority conferred upon him by law, to sell the securi- 
 ties deposited with him. The legislature have never 
 authorized him to sell the securities so deposited, in the 
 event of any banking association refusing to redeem its 
 bills in specie. It is only in the event of their refusal to 
 redeem in lawful money of the United States, that he is 
 authorized to proceed and sell the securities. If the views 
 hereinbefore stated are sound, it follows, that neither of 
 
68 
 
 the respondents in the first above entitled cause has re- 
 fused to redeem its bills in the lawful money of the United 
 States, aud that therefore the bank superintendent has 
 been properly restrained from proceeding to sell the secu- 
 rities of the respondents deposited with him. 
 
 For the reasons already stated I arrive at the clear con- 
 viction that congress, under the authority conferred upon 
 it to borrow money on the credit of the United States, had 
 the authority to make the treasury notes of the govern- 
 ment issued for such purpose, a legal tender as well in 
 payment of debts due to the United States, as those of a 
 private nature. — I do not wish to be understood as intimat- 
 ing that the same thing could not be done by virtue of 
 the authority conferred upon congress to levy and collect 
 taxes, duties, imposts and excises ; to regulate the com- 
 merce of the Union ; to coin money and regulate the 
 value thereof and of foreign coin ; to raise and support 
 armies, and to provide and maintain a navy — to fulfill the 
 guarantee of the Constitution that each state shall ever 
 have a republican form of government, and shall be pro- 
 tected against invasion and domestic violence, and to 
 enable congress to discharge the solemn and imperative 
 duty resting upon it, to make all laws necessary and 
 proper for carrying into execution the high trust devolved 
 upon the President, to preserve, protect and defend the 
 Constitution of the United States, and to provide for and 
 furnish him with all the means necessary for that purpose. 
 It is sufficient for the present discussion, that the power 
 which has been exercised by congress is believed to be 
 authorized by the Constitution, and arriving at that 
 result, the cases under review are disposed of. 
 
 If my brethren concur in these views, the judgment in 
 the first above entitled cause will be affirmed, with costs, 
 and the judgment in the second above entitled cause will 
 be reversed, and judgment given for the plaintiff with 
 costs, and that the defendant therein deliver up the bond 
 and mortgage mentioned in the case submitted and 
 acknowledge satisfaction thereof, and discharge the same 
 of record. 
 
OPINION OF JUDGE BALCOM. 
 
 LEWIS H. MEYERS, Appelkmt, 
 
 vs. 
 
 JAMES I. ROOSEVELT, Respondent. 
 
 This case was agreed upon, and submitted to the 
 general term of the Supreme Court in the first district. 
 
 The defendant held a bond and mortgage, that the 
 plaintiff had obligated himself to pay, and which became 
 due in August, 1857. They were given to secure the 
 repayment of a loan of $8,000, made by the defendant 
 in gold, or its equivalent, in 1854. 
 
 In June, 1862, the plaintiff, desiring to pay and dis- 
 charge the mortgage, tendered to the defendant $8,170 
 (being the full amount of principal and interest due on 
 the same), in notes of the United States, issued under the 
 act of congress, approved February 25, 1862, entitled "An 
 act to authorize the issue of United States notes, and for 
 the redemption and funding thereof, and for funding the 
 floating debt of the United States." 
 
 The defendant refused to receive the same, as legal ten- 
 der, and claimed that the repayment should be made in 
 gold coin of the United States, as being the money 
 in which the loan was made. But he received the notes 
 conditionally, under an agreement with the plaintiff, that 
 the question, whether said notes were a legal tender in 
 payment of the mortgage debt and interest, should be 
 submitted to the court; and if the court should decide 
 that said notes were a legal tender and discharge of said 
 bond and mortgage, then the defendant should deliver 
 up said bond and mortgage, and acknowledge satisfaction 
 
70 
 
 thereof, and discharge the same of record. But if the 
 court should decide otherwise, the plaintiff should pay to 
 the defendant the further sum of $326.78, with interest 
 from the 11th day of June, 1862, to entitle him to the bond 
 and mortgage and to have the same canceled of record. 
 The Supreme Court held that the United States notes 
 were not a legal tender in payment of said mortgage 
 debt; and that the plaintiff must pay the defendant the 
 further sum of $326.78 and interest from the 11th day of 
 June, 1862, and gave judgment accordingly in favor of the 
 defendant. The plaintiff appealed from the judgment to 
 this court. 
 
 B. Boelher and William Curtis Noyes, for appellant. 
 George T. Curtis, for respondent. 
 
 Balcom, J. The bond and mortgage which the plaintiff 
 offered to pay to the defendant, in notes of the United 
 States, were given to secure the repayment of a loan of 
 $8,000, made in gold or its equivalent, in 1854. The 
 borrower was to pay the interest thereon semi-annually, 
 and the principal in August, 1857. The plaintiff obli- 
 gated himself to pay the bond and mortgage; and the 
 question in the case is, whether he could discharge the 
 same by a tender of the amount due thereon in notes of 
 the United States. 
 
 The notes tendered were issued under and by virtue 
 of the act of congress, approved February 25, 1862, which 
 authorized the secretary of the treasury of the United 
 States, to issue on the credit of the United States, one hun- 
 dred and fifty millions of dollars of United States notes, 
 not bearing interest, payable to bearer, at the treasury of 
 the United States, in denominations not less than five 
 dollars; and the act declares that such notes "shall be 
 lawful money, and a legal tender in payment of all debts, 
 public and private, within the United States," except 
 duties on imports and interest on certain bonds of the 
 United States. 
 
 The principal point made by the defendant's counsel is 
 that congress had no authority to pass this act; and the 
 
71 
 
 principal questions in the case are, whether congress has 
 power to make anything but gold and silver coin a tender 
 in payment of debts, or to pass any law impairing the 
 obligation of contracts. 
 
 I agree that congress does not possess this power if it 
 is not conferred upon it by the Constitution of the United 
 States; for whatever power or authority it has is granted 
 to it by that instrument. 
 
 The Constitution expressly confers power upon congress 
 " to borrow money on the credit of the United States ;" 
 " to coin money, regulate the value thereof and of foreign 
 coin ;" "to declare war, grant letters of marque and repri- 
 sal, and make rules concerning captures on land and 
 water ;" " to raise and support armies ;" to provide and 
 maintain a navy ;" to provide for calling forth the militia 
 to execute the laws of the Union, suppress insurrections, 
 and repel invasions ;" and " to make all laws which 
 shall be necessary and proper for carrying into execution 
 the foregoing powers, and all other powers vested by 
 this Constitution in the government of the United States, 
 or in any department or officer thereof." (Const., art. 1, § 
 1.) It declares that, "the United States shall guarantee to 
 every state in this Union a republican form of govern- 
 ment, and shall protect each of them against invasion." 
 (Art. 4, § 4.) Also that "this Constitution and the laws 
 of the United States which shall be made in pursuance 
 thereof; and all treaties made, or which shall be made 
 under the authority of the United States, shall be the 
 supreme law of the land ; and the judges in every state 
 shall be bound thereby ; anything in the Constitution or 
 laws of any state to the contrary notwithstanding." 
 (Art. 6, sub. 2.) 
 
 The Constitution authorizes the formation or erection 
 of new states within the jurisdiction of others ; and also 
 the formation of new states by the junction of two or 
 more states, or parts of states, by the consent of the legis- 
 latures of the states concerned as well as of the congress. 
 (Art, 4, § 3.) All the states (subject only to this excep- 
 tion), must forever remain in the Union in the same shape 
 
72 
 
 they were admitted. No right of secession is reserved to 
 any state, or its citizens, by the Constitution, and none 
 can be implied or spelled out from its provisions or his- 
 tory, or by the application of any principle of public law. 
 The Union is indissoluble except by an amendment of the 
 Constitution, or its abrogation, in a legal manner. 
 
 The doctrine that the federal Constitution is but a com- 
 pact between the states, and that any state can lawfully 
 withdraw from the Union by a legislative act of such state, 
 or a resolution of a convention of its people, needs no 
 special notice. It is almost as absurd as the idea that the 
 Constitution of a state is a mere compact between coun- 
 ties, and that a county can secede from the state govern- 
 ment at the pleasure of the inhabitants of such county. 
 
 I have enumerated but a small number of the powers 
 specifically granted to congress and the government of the 
 United States by the Constitution. But I think I have 
 mentioned enough to show that the Constitution provides 
 a strong government, which has the right of self-preserva- 
 tion, against all unlawful combinations or revolutionary 
 proceedings for its overthrow. And no one can doubt that 
 an army and navy, as well as the militia of the several 
 states, are lawful and constitutional means, when others 
 are insufficient, for putting down a rebellion and preserv- 
 ing the Union. The authority to call forth the militia to 
 execute the laws of the Union, suppress insurrections and 
 repel invasions, implies no prohibition against employing 
 the army and navy for such purposes ; nor does it imply 
 that the militia cannot be used for suppressing a rebellion 
 as well as a mere insurrection. A contrary doctrine would 
 make the government of the United States almost as feeble 
 as the old confederation was, which was abandoned by 
 reason of its weakness. 
 
 These views are entirely consistent with all legitimate 
 state rights. They only make such rights subordinate to 
 certain great powers that the people granted to congress 
 and the national government, by the adoption of the Con- 
 stitution of the United States, in order to form a more 
 perfect union, establish justice, ensure domestic tran- 
 
73 
 
 quillity, provide for the common defence, promote the 
 general welfare, and secure the blessings of liberty to 
 themselves and their posterity. (Preamble to Const.) 
 
 No state can coin money; make anything but gold and 
 silver coin a tender in payment of debts; or pass any law 
 impairing the obligation of contracts. (Art. 1, sec. 10, 
 sub. 1.) But congress is not prohibited from doing either 
 of these things, although it is prohibited, as well as the 
 states, from passing any bill of attainder, or ex post facto 
 law, or granting any title of nobility. (Art. 1, §§ 9, 10.) 
 
 At the time the act in question was passed, the legisla- 
 tures, or conventions, in nine states of the Union, had 
 adopted pretended ordinances of secession from the Union ; 
 and a large portion of the inhabitants of such states, if 
 not a majority of them, were in open rebellion against the 
 government of the United States, and at least three hun- 
 dred thousand of them were armed and doing all they 
 possibly could to overthrow such government; and their 
 numbers were rapidly increasing. 
 
 So formidable a rebellion had never been known ; and 
 the means to be provided for its suppression were neces- 
 sarily greater than any government, ancient or modern, 
 had ever furnished suddenly for any purpose. It forebode 
 the greatest and bloodiest civil war the world has ever 
 seen. The very existence of the Union was imperiled and 
 at stake; and the question that agitated all minds was, 
 can the federal government be maintained, or must it be 
 overthrown by the wickedest and most groundless rebel- 
 lion ever organized in any age or country. 
 
 These facts show that a navy of unprecedented magni- 
 tude and an army of at least half a million of soldiers, 
 besides the militia of the several states, were necessary to 
 preserve the government, maintain the Constitution, and 
 execute the laws of the Union. 
 
 Congress had the authority, and it was its duty, to pro- 
 vide and maintain such a navy — to raise and support such 
 an army, and to provide for calling forth the militia. But 
 such a navy could not be provided and maintained, or such 
 an army raised and supported, and the expense of calling 
 
 10 
 
74 
 
 forth and supporting the militia defrayed, without ade- 
 quate pecuniary means and without the expenditure of 
 vastly more money than could have been borrowed in 
 coin in the entire world. 
 
 Could congress have been justified, by the Constitution, 
 if it had permitted the republic to perish, because enough 
 gold and silver coin could not be borrowed to save it ? I 
 answer no ; and the Constitution itself answers no. 
 
 The Constitution plainly required congress to pass all 
 laws, which were necessary and proper for raising, main- 
 taining and supporting a navy and armies, large enough 
 and powerful enough to put down the rebellion, and 
 preserve the Union and the Constitution. And when 
 congress could not do all this without making the notes 
 of the United States a legal tender in payment of private, 
 as well as public debts, it was its duty to do that, even 
 though the act impaired the obligation of contracts. 
 
 It seems to me to be very plain that the Constitution 
 authorizes congress to pass such a law whenever necessary 
 and proper for raising, maintaining and supporting a navy 
 and armies to maintain the Union, preserve the Constitu- 
 tion and execute the laws of the United States. And the 
 word necessary, in this connection, may mean needful, 
 requisite, essential or conducive to. (McCulloch v. The 
 State of Maryland, 4 Wheaton, 316.) 
 
 It is not probable such an act will ever be deemed neces- 
 sary or proper in time of peace ; and the one in question 
 will undoubtedly be repealed, and the notes issued under 
 it called in, and a metallic currency restored, as soon 
 after the present rebellion shall have been suppressed, as 
 the interests of the people shall require, or as such a course 
 will conduce to the general welfare. 
 
 Whether this act was necessary and proper at the time 
 it was passed, was for congress to determine. But I do 
 not doubt that it judged correctly and wisely when it 
 determined this act was necessary and proper in view of 
 the then existing condition of our national affairs. That 
 it judged wisely in passing this act the astonishing success 
 that has attended its execution fully proves. No nation 
 
75 
 
 has ever succeeded so well financially, in any great war, 
 as the United States has in this, by reason of this law. 
 All loyal citizens have prospered pecuniarily from the time 
 it was passed. Such a thing as pecuniary distress, in the 
 loyal states, on account of the war, or by reason of the 
 financial measures of the government, has not been 
 heard of. 
 
 Without this law there must have been the most ter- 
 rible distress throughout the land. We should have had 
 the most frightful intestine commotions ; anarchy would 
 have taken the place of law and order in our cities and 
 most populous towns. And it is probable the republic 
 itself would have been subverted ere now, or have become 
 too weak to be respected by other nations, if this law had 
 not been passed. 
 
 I cannot doubt, as the states only are prohibited by the 
 Constitution from making anything but gold and silver 
 coin a tender in payment of debts, or from passing any law 
 impairing the obligation of contracts, that congress may 
 enact that the notes of the United States shall be a legal 
 tender in payment of debts, and designate such notes 
 lawful money ; and also pass laws impairing the obliga- 
 tion of contracts, whenever such laws are necessary and 
 proper for carrying into execution any of the powers ex- 
 pressly conferred upon congress, or vested in the govern- 
 ment of the United States by the Constitution. And as 
 this act was necessary and proper for carrying into execu- 
 tion powers expressly granted to congress by the Consti- 
 tution, to wit: the powers to borrow money, to raise 
 and support armies, to provide and maintain a navy, to 
 provide for calling forth the niilitia to execute the laws of 
 the Union and suppress insurrections, congress had power 
 to pass it, unless it is an ex post facto law, or deprives per- 
 sons of property without due process of law, as to which 
 I shall soon speak. 
 
 I will not say this law could not be sustained on the 
 broad ground that the government of the United States 
 has the right of self-preservation, and that it was necessary 
 
76 
 
 for that purpose. Nor shall I hold that congress was not 
 authorized to pass it, by virtue of the power granted to it 
 to coin money and regulate the value thereof. A very 
 able argument has been made by one of the defendant's 
 counsel, to show that this power authorized the passage of 
 this law, in which he quotes from Blackstone, that "money 
 is an universal medium, or common standard, by compari- 
 son with which the value of all merchandise may be ascer- 
 tained; or it is a sign which represents the respective 
 values of all commodities." (1 Blk. Com., 276.) But it is 
 unnecessary to determine these questions and I will not 
 express any opinion respecting them. 
 
 This act is not an ex post facto law. For it is well 
 settled that the phrase " ex post facto laws," is not appli- 
 cable to civil laws, but only to penal and criminal laws. 
 (Watson v. Mercer, 8 Peters' Rep., 89.) 
 
 Kbr is this act in conflict with the constitutional in- 
 hibition against depriving persons of property without 
 due process of law. (Amendments, art. 5.) It does not 
 deprive any person of property, although it requires credi- 
 tors to take notes of the United States in payment of 
 debts, which their debtors had previously agreed to pay in 
 gold or its equivalent : for it makes such notes as valu- 
 able as gold coin, in the hands of every person receiving 
 them, for all commercial purposes, and for the payment of 
 all debts, except those for duties on imports; and this 
 exception is too insignificant to justify a holding that the 
 act deprives persons of property in any legal sense of the 
 term. I of course lay out of view the fictitious difference 
 created by brokers and speculators between the value of 
 gold coin and such notes, as having no legitimate bearing 
 upon the question. That difference can not be regarded, 
 because it is not recognized by law ; and all agreements to 
 pay any such difference are utterly void. 
 
 A judgment cannot be recovered for more than one 
 thousand dollars, besides interest, for the wrongful con- 
 version of one thousand gold dollars, whatever premium 
 may be paid therefor at the board of brokers in the city 
 
77 
 
 of New York or elsewhere, and such a judgment may be 
 paid, dollar for dollar, in notes of the United States. 
 
 Each five dollar note, issued under this act, is precisely 
 of the same value, in legal contemplation, as a piece of 
 gold coin of the denomination of five dollars ; and if all 
 citizens would strictly observe this law, as they should, 
 any person could obtain five dollars in gold coin for one of 
 these notes at any place where such coin is to be had. 
 
 If a promissory note should now be given for one hun- 
 dred dollars, for a loan of twenty of these notes, and this 
 law should be repealed before the repayment of such loan, 
 the person making the loan could exact one hundred dol- 
 lars and interest, in gold and silver coin in satisfaction of 
 the debt. 
 
 This law must be judged as if every person lived up to 
 it and had full faith in the ability and willingness of the 
 federal government to pay these notes in coin and to main- 
 tain itself under all conceivable circumstances ; and when 
 it is judged in tbis manner, it does not deprive any person 
 of property in any legal sense of the term. 
 
 I have not deemed it either necessary or expedient to go 
 into the history of the Constitution, or to refer to the 
 debates of the convention that framed it ; or to cite many 
 authorities to sustain the foregoing positions or conclu- 
 sions. They seem to me to be so clearly correct and so 
 well grounded in good sense, that such labor is wholly 
 unnecessary. 
 
 I will, however, remark that there is nothing in the his- 
 tory of the Constitution, or in the debates of the conven- 
 tion that framed it, or in any book of authority, in conflict 
 with the views and conclusions I have expressed. 
 
 For these reasons I am of the opinion the act of con- 
 gress, approved February 25, 1862, is not repugnant to 
 any provision of the Constitution of the United States, 
 and is valid. 
 
 It follows that the judgment of the supreme court, in 
 the case, should be reversed, and one given for the plain- 
 tiff, declaring that the notes of the United States, issued 
 under such act, were and are a legal tender in payment of 
 
78 
 
 the defendant's bond and mortgage, and that he deliver 
 the same to the plaintiff to be canceled, and acknowledge 
 satisfaction of the mortgage and cancel the same of record, 
 and that the plaintiff recover the costs of the appeal to this 
 court. 
 
OPINION OF JUDGE WRIGHT. 
 
 THE METROPOLITAN BANK and THE SHOE AND LEATHER BANK, 
 
 Respondents, 
 
 agst. 
 
 HENRY H. TAN DYCK, Superintendent of the Bank Department, Appellant 
 
 LEWIS H. MEYER, Appellant, 
 
 agst. 
 
 JAMES I. ROOSEVELT, Respondent. 
 
 Wright, J. These cases involve the consideration and 
 decision of a single question ; but one, perhaps, of more 
 importance, in its effect and influence on public and pri- 
 vate interests, than any ever before discussed in the courts 
 of the state. Although not the ultimate tribunal on which 
 the duty of deciding it is devolved, it is not the less our 
 duty to examine and consider it with a deep sense of the 
 responsibility involved in its decision. 
 
 The congress of the United States, on the 25th of 
 February, 1862, passed an act entitled " An act to autho- 
 rize the issue of United States notes, and for the redemp- 
 tion and funding thereof, and for funding the floating debt 
 of the United States." (U. S. Statutes at large, chap. 32.) 
 The act authorized the secretary of the treasury to issue, 
 on the credit of the United States, one hundred and fifty 
 millions of dollars of United States notes, not bearing 
 interest, payable to bearer at the treasury of the United 
 States, and of such denominations as he might deem expe- 
 dient, not less than five dollars each. It was provided 
 that the notes " shall be receivable in payment of all taxes, 
 internal duties, excises, debts and demands of every kind 
 due to the United States, except duties on imports, and of 
 all claims and demands against the United States of every 
 
80 
 
 kind whatsoever, except for interest upon bonds and 
 notes, which shall be paid in coin, and shall also be lawful 
 money and a legal tender in payment of all debts, public 
 and private, within the United States, except duties on 
 imports and interest as aforesaid." The act contained 
 further provision for the funding of the treasury notes and 
 the floating debv of the United States by the issue of 
 coupon bonds or registered bonds to the amount of 
 $500,000,000, redeemable at the pleasure of the United 
 States after five years, and payable twenty years from 
 date, and bearing interest at the rate of six per centum 
 per annum, payable semi-annually. It is thus seen that 
 the quality of money was imparted to the treasury notes 
 authorized to be issued, and they were made a legal tender 
 in payment .of all debts, public and private, within the 
 United States, except for duties on imports and interest 
 on United States bonds and notes. 
 
 In the first of the above entitled cases, the plaintiffs, 
 that are associations organized under the general banking 
 law of the State, severally refused, on demand of the 
 holder thereof, to redeem one of their circulating notes of 
 the denomination of ten dollars, in gold or silver coin of 
 the United States, but each tendered to such holders a 
 treasury note of the denomination of ten dollars, issued 
 under the authority of the act of February 25, 1862, as 
 and for a legal redemption and payment of the circulating 
 notes respectively issued by them. The bank notes were 
 protested for non-payment in gold and silver coin, and the 
 notes and protests thereof filed in the office of the super- 
 intendent of the banking department, who gave notice to 
 the banks to pay the same. The general banking law 
 makes it the duty of the superintendent, in case of a de- 
 fault of the banks to redeem their circulating notes in 
 lawful money of the United States, to sell the stocks or 
 trust funds in his hands belonging to the banks for their 
 redemption. Apprehending that the superintendent would 
 take such proceeding, on the ground that the plaintiffs 
 had failed, upon lawful demand, to redeem their circulat- 
 ing notes in the lawful money of the United States, the 
 
81 
 
 banks and the superintendent, upon a case agreed on, 
 submit to the court the questions, whether the act of con- 
 gress, approved February 25, 1862, is constitutional and 
 valid, and, also, whether the refusal of the plaintiffs to 
 redeem their notes, on demand, in the gold or silver coin 
 of the United States, and their offer to redeem their 
 notes in the notes of equal denominations, issued, as afore- 
 said, by authority of congress, was a failure or refusal to 
 redeem their notes in the lawful money of the United 
 States. If the court was of the opinion that the act was 
 constitutional, and that the plaintiffs offered to redeem 
 their notes in the lawful money of the United States, then 
 judgment was to be entered restraining the superinten- 
 dent from taking any steps towards redeeming any of the 
 notes of the plaintiffs in cases where they have offered to 
 redeem in the legal tender notes of the United States. 
 But if the court should be of the opinion that the act is 
 unconstitutional, and that a refusal to redeem in the 
 gold or silver coin of the United States is a refusal to 
 redeem in the lawful money of the United States, then 
 judgment was to be entered dismissing the complaint. 
 
 The second case was also submitted. The facts were 
 these : In August, 1854, the defendant loaned to Samuel 
 Bowne the sum of $8,000, and Bowne executed and de- 
 livered to him his bond, conditioned for the payment 
 thereof, with interest half-yearly, on the 23d of August, 
 1857. As a further security, Bowne executed a mortgage 
 on certain real estate in Eichmond county. On making 
 the loan to Bowne, the defendant gave him his check for 
 $8,000, on the Chemical Bank in the city of New York, 
 payable in gold, at the option of Bowne. The plaintiff in 
 May, 1861, became the owner in fee, of the mortgaged 
 premises, and assumed the payment of the mortgage. In 
 June, 1862, being desirous of paying and discharging the 
 mortgage, he tendered to the defendant the sum of $8,170, 
 being the amount of principal and interest, in notes of the 
 United States, issued under the act of February 25, 1862. 
 The defendant refused the same as legal tender, and 
 claimed that the repayment should be made in gold cor 
 li 
 
82 
 
 of the United States, as being the mouey in which the loan 
 was made. It was then agreed that the defendant should 
 receive the said sum of $8,170 in United States notes, 
 conditionally, and the question be submitted to a court 
 having jurisdiction, whether they are or were a legal ten- 
 der in payment of the mortgage debt and interest. If the 
 court should decide that they were a legal tender in pay- 
 ment and discharge of the bond and mortgage, then the 
 defendant was to deliver up the mortgage and discharge 
 the same of record ; but if the court should decide that the 
 treasury notes were not a legal tender in payment of the 
 mortgage debt, then the plaintiff was to pay to the de- 
 fendant the further sum of $321.78, being the difference 
 between the market value of the notes and gold coin of 
 the United States on the 11th of June, 1862. Upon these 
 facts, the single question submitted was : Were the notes 
 of the United States a legal tender on the part of the 
 plaintiff? 
 
 There are minor questions in each case ; but the para- 
 mount one, common to and decisive of both cases is, the 
 power of congress of the United States to enact the law 
 of the 25th February, 1862. That act declared in terms, 
 that the notes issued should be lawful money and a legal 
 tender in payment of all debts, public and private, except 
 duties on imports and interest on United States securities. 
 If congress could authorize the issue of the notes with the 
 properties imparted to them by the law, it conclusively 
 determines the cases against the defendants. The obliga- 
 tion of the banks was to redeem their circulating notes in 
 "the lawful money of the United States," and if the 
 United States notes were such lawful money, and a legal 
 tender in payment and discharge of the mortgagee's debt, 
 in the second case, the mortgagee was not entitled to re- 
 cover the difference between the market value of the notes 
 and gold coin. 
 
 The government of the United States, as it need hardly 
 again be repeated, is one of enumerated powers. Its 
 powers are also limited, but within their scope and its 
 sphere of action, it is supreme. Emanating from the peo- 
 
pie, all the powers granted are to be exercised directly 
 upon them, and no state, as such, can control its opera- 
 tions. The government was, also, meant to be perpetual, 
 and the powers with which it was invested were admir- 
 ably fitted to maintain, preserve and defend the national 
 existence. All the attributes of sovereignty to be exer- 
 cised by a nation, in peace or in war, for insuring domestic 
 tranquillity, providing for the common defence, promoting 
 the general welfare, and securing the blessings of liberty, 
 forever, were expressly or impliedly granted in the great 
 ordinance of government. Manifestly, the trainers of the 
 Constitution, and the people who adopted it, did not put 
 forth the instrument, in the language of Chief Justice 
 Marshall, as a " splendid bauble," but as a governmental 
 creation, efficiently endowed with all the powers and capa- 
 cities, to effect the ends and purposes of its being. In a 
 general sense, the government thus created does not pos- 
 sess an omnipotence equal to that of the parliament of 
 Great Britain ; but in respect of all the subjects of legis- 
 lation, specifically enumerated and necessarily implied 
 (where there is no express prohibition or restriction upon 
 its exercise), complete sovereign legislative power was 
 designed to be and is conferred upon congress; and that 
 body, I think, possesses an omnipotence in these things 
 equal to that possessed by the British parliament, or any 
 other supreme legislative body. The powers expressly 
 conferred in order to constitute and perpetuate the nation 
 are unlimited in every particular. 
 
 Amongst the specified powers are these : 1st. To lay 
 and collect taxes, duties, imposts and excises to pay the 
 debts and provide for the common defense and general 
 welfare of the United States ; 2d. To borrow money on 
 the credit of the United States ; 3d. To regulate commerce 
 with foreign nations, and among the several states ; 4th. 
 To coin money, regulate the value thereof, and of foreign 
 coin ; 5th. To provide for the punishment of counterfeit- 
 ing the securities and current coin of the United States ; 
 6th. To declare war ; 7th. To raise and support armies ; 
 8th. To provide and maintain a navy ; 9th. To suppress 
 
84 
 
 insurrections and repel invasions. These are substantive 
 powers, and if the Constitution were silent on the subject, 
 the power of congress to carry them into execution would be 
 necessarily implied. When the power is given, in general 
 terms, to lay and collect taxes, to borrow money, to regu- 
 late commerce, to coin money and regulate the value 
 thereof, and to support and maintain armies and navies, 
 it involves the incidental legislative power of adopting 
 and selecting the means and measures to carry into execu- 
 tion the specific power. But the instrument itself removes 
 all doubt on the subject. Following an enumeration ot 
 the substantive powers, is an express grant of authority to 
 make all laws which shall be necessary and proper for 
 carrying the enumerated powers into execution (IT. S. 
 Const., art. 1, § 8). The specific power is conferred, and 
 the mode of executing or giving effect to it entrusted to 
 congress. The measure of the legislative authority is not 
 restricted to an enactment indispensably requisite to carry- 
 ing the specified power into execution, but extends to 
 things that conduce to its exercise. Congress possesses 
 the choice of means of legislation, and may use any means 
 which are, in fact, conducive to the exercise of the power 
 granted. If the means are appropriate and adapted to the 
 end, and are not repugnant to the Constitution itself, they 
 are not invalid. The question whether a thing is neces- 
 sary and proper under a specific power, or whether it is 
 necessary and proper to execute a specific power, in respect 
 of which there may be a choice of modes and means, in a 
 particular manner, is primarily to be determined by con- 
 gress. Possessing an uncontrolled right of selection, and 
 the presumption being that the selection will be made in 
 good faith and with reference to the public exigencies, 
 and not for purposes of usurpation, the exercise of the 
 legislative judgment will not be interfered with, unless it 
 js plain and clear that the means chosen are prohibited or 
 do not consist with the letter and spirit of the Constitu- 
 tion. Whether the means are appropriate or adapted to 
 the end is a fact, and if it be an appropriate measure, not 
 prohibited, the degree of its necessity is a question of 
 
85 
 
 legislative discretion, not of judicial cognizance. It is not 
 for the judiciary to determine whether a law of congress 
 has a direct relation as a means to the execution of an 
 enumerated power. If, in any sense, or in any degree, 
 the means employed are appropriate or conducive to the 
 exercise of the power— if there be any possible relation of 
 the means to the end— the judiciary is limited to the 
 inquiry whether the use of such means is repugnant to 
 any provisions of the Constitution itself. The judicial 
 department of the government cannot declare that, be- 
 cause, to the judicial mind, congress, in the execution of 
 a specified power, seems to have employed means not 
 having a direct, but a circuitous, remote and indirect rela- 
 tion to the end of such power, its act is constitutionally 
 invalid. These are the views, in substance of the Federal 
 judiciary. In the case of the United States v. Fisher (2 
 Cranch, 358), a law of congress gave to certain debts due 
 to the United States, the preference over all other debts, 
 whether due to the states or individuals. It was claimed 
 that the law was unconstitutional ; that the authority to 
 pass it was not expressly given to congress by the Consti- 
 tution ; that it was not incidental, and that there was a 
 seeming injustice in giving the preference as against the 
 states and individuals in the states. 
 
 The same argument was substantially urged, as in one 
 of the present cases, that the effect of the law was to 
 impair the obligation of contracts. But Chief Justice 
 Marshall said: "Congress must possess the choice of 
 means, and must be empowered to use any means, which 
 are in fact conducive to the exercise of a power granted 
 by the Constitution. The government is to pay the debts 
 of the Union, and must be authorized to use the means 
 which appear to itself most eligible to effect that object." 
 It would be difficult to show how an act giving a prefe- 
 rence to certain United States debts, over other debts due 
 to states or individuals, bears a direct relation as a means 
 to the execution of the power to pay the debts of the 
 Union. The fact is apparent that it was using means to 
 enable congress to exercise the power of paying the debts 
 
86 
 
 of the nation; but there was no direct, obvious relation 
 of the means to the object to be accomplished. Indirectly, 
 the act conduced to the execution of the power. In 
 McCuUoch v. The State of Maryland (4 Wheaton, 316), 
 it was held that an act incorporating- a bank, was a law 
 made in pursuance of the Constitution. It was not within 
 any of the enumerated powers. There was no direct rela- 
 tion as of means to an end in the creation of a bank and 
 paying the debts of the government. Creating a corpora- 
 tion put nothing into the treasury. It was no exercise of 
 the taxing power ; nor was the government, in any degree, 
 enabled thereby to pay the public debt. All that can be 
 said is, that it furnished the government with a convenient, 
 and, as Congress adjudged, an appropriate instrument, to 
 be used by its executive officers in the collection and 
 disbursement of the public revenues. The creation of a 
 bank was the use of means that were, in a constitutional 
 sense, "necessary and proper," not because a bank stood 
 in the direct relation of means to the ends of collecting the 
 revenue and paying the public debts ; but because it was 
 an appropriate instrument, in the judgment of Congress, 
 capable of being advantageously employed in the exercise 
 of those constitutional powers. It was in the sense of an 
 executive agent of the government, that the bank, as a 
 means, conduced to an effectual execution of the power 
 of collecting the revenues and paying the debts of the 
 nation. In the case of The People, ex rel. Tlie Banh of the 
 Commonwealth, v. The Commissioners of Taxes, the supreme 
 court of the United States, at its recent term, held a law 
 of Congress valid which exempted the securities of the 
 United States from taxation under state authority. Such 
 a law could only have been adjudged necessary and proper 
 in the execution of the specific power to borrow money on 
 the national credit. There was no direct relation as means 
 between exempting United States securities from state 
 taxation and borrowing money on the credit of the Uuited 
 States. But there is no difficulty in perceiving how such 
 an exemption would conduce, indirectly, to an effectual 
 execution of the power. The government goes into the 
 
87 
 
 market to borrow money to meet the public exigencies and 
 tenders securities exempt from state taxation. Can there 
 be any doubt that such exemption strengthens the public 
 credit, and imparts an increased value to the security? A 
 bond or note of the government is certainly more valuable, 
 and sold in the market, would put more money in the 
 national treasury, if exempted from state taxation, than 
 if subject to the taxing power of the states. Thus the 
 exemption, as a means, indirectly conduces to an effectual 
 execution of the borrowing power. 
 
 In United States v. Marigold (9 Howard, 560), the only 
 question involved was, whether congress could pass a law 
 making it criminal to import spurious coin. The court 
 held that the power existed, arid that it was derived from 
 the power to coin money and regulate its value. No 
 argument can be adduced to show that punishing the 
 importation of spurious coin is a means having a direct 
 relation to the end of "coining money and regulating its 
 value." 
 
 In executing, therefore, the powers specifically conferred, 
 the government may use all appropriate means, that 
 directly or indirectly conduce to their effectual exercise ; 
 unless such means are forbidden by the Constitution itself. 
 It can make no difference, even, if the indirect effect of 
 the means employed to carry into execution a specific 
 power, be to impair the obligation of private contracts. 
 Guided by these rules, the act in question is to be consi- 
 dered and construed. 
 
 We are not to close our eyes to the fact that when the 
 law now alleged, in some of its particulars, to be uncon- 
 stitutional, was passed, a rebellion and civil war existed 
 of such proportions and magnitude as to threaten the 
 destruction of the national government. The exigency 
 demanded the prompt and efficient exercise of all the im- 
 portant and vital functions of that government in main- 
 taining and preserving it. Armies were to be raised and 
 supported, and navies equipped. It was not only within 
 the express power, but the duty of congress to provide the 
 ways and means for suppressing the widely-extended 
 
88 
 
 insurrection ; and that body would have been recreant to 
 the important trusts confided to it, had it failed to employ 
 all constitutional measures in the attainment of the end. 
 But money was required to raise and support armies, 
 maintain navies, and provide the munitions of war. The 
 money in the treasury, and the ordinary revenues of the 
 government were utterly inadequate. The imminent 
 nature of the crisis rendered a resort to direct taxation to 
 supply the necessary resources impracticable. The only 
 recourse left was to resort to the borrowing power. Money 
 was to be obtained to meet the wants of the government, 
 if at all, on its credit ; and to this power, in the emer- 
 gency, congress resorted. It is conceded that congress 
 had a perfect right to authorize the issue of treasury notes 
 as a mode of borrowing money, and that, indeed, all the 
 provisions of the law of February, 1862, are admitted to 
 be constitutional except the clause imparting to the notes 
 the quality of money and making them a legal tender. 
 And why not this, if it would aid or conduce to the effec- 
 tual exercise of the constitutional powers to borrow 
 money, collect the internal revenue, or pay the public 
 debts, and as a means is not prohibited ? The govern- 
 ment must raise money by borrowing. It requires no 
 argument to prove that any means that strengthen the 
 national credit, and inspire public confidence in its securi- 
 ties, will enable it to borrow more readily, and on more 
 advantageous terms ; and if so, the government may use 
 them in effecting the object. It may borrow on its bonds 
 or notes, bearing interest, and payable at a future period ; 
 and I know nothing to hinder its borrowing on notes pay- 
 able on demand, without interest, and with the qualities 
 of a circulating medium attached to them. Pursuing the 
 first mode, the government is driven to dispose of its 
 securities in the market, at rates corresponding with the 
 confidence, at a particular juncture, felt in its credit by 
 capitalists. In the latter way, it is emphatically a popular 
 loan — the whole public are lenders. The individual who 
 holds a legal tender note, is in effect a lender to the gov- 
 ernment to its amount, whilst an additional value is im- 
 
89 
 
 parted to it as a security, from the fact that it is endowed 
 with the properties of money. In either mode of borrow- 
 ing, it is essential to the effectual execution of the power 
 that the' security should be made ample ; and if by endow- 
 ing the treasury note with the function of money, that 
 end is attained, it is a means that may be resorted to by 
 the government. It cannot be, that in carrying into exe- 
 cution the power to borrow money on the credit of the 
 government, means not forbidden by some provision of 
 the constitution, which elevate its credit, preserve confi- 
 dence in its securities, and make them equivalent to and 
 perform the function of money in effecting exchanges of 
 property, are not within the measure of the legislative 
 authority of congress. It follows as an inexorable result, 
 that the higher the confidence in the public credit and the 
 more valuable government securities are made, the more 
 promptly and effectually may the borrowing power be 
 exerted. If, as a means of borrowing, notes are issued 
 with qualities to serve the purposes of a currency, and 
 fundable at the pleasure of the holder, in my opinion it is 
 nothing more than the government may do in the exercise 
 of the power. Again, take the power of internal taxation. 
 This embraces the right of levy and collection. As a 
 means for collecting the internal revenue, is it not compe- 
 tent to attach to a note of the government the characte- 
 ristic of money ? It is an instrument which the govern- 
 ment sees fit to use in the direct execution of a conceded 
 constitutional power. It cannot be any objection that in 
 collecting the public revenue, congress deems the use of a 
 legal tender note the most eligible mode of accomplishing 
 the object. So, also, take the power to pay the public 
 debts. May not the government use a treasury note, as 
 money, in paying the debts of the nation, and if so, can 
 there be any real objection to congress declaring such 
 purpose ? It is conceded that the government may pay 
 its debts in what is denominated a paper currency — the 
 million of soldiers and sailors in its service may be paid in 
 legal tender notes without violating the constitution. 
 
 12 
 
90 
 
 Creating such a currency and using it, is the use of means 
 to effect the object. 
 
 The purposes of the act in question were threefold: 
 First, to borrow money; second, to pay the public debts; 
 and third, to collect the internal revenue and other de- 
 mands of the government. The mode devised for borrow- 
 ing money was by the issue of treasury notes. It is not 
 denied that congress possessed the power to use treasury 
 notes; and I think it was empowered to impart to them 
 such properties as would enable them to be used most 
 advantageously in executing the borrowing power. If a 
 note of the government, having the function of money, 
 among other characteristics, was an eligible and appro- 
 priate means for effecting the object, congress had the 
 right to select those means, unless prohibited in the choice 
 of them by the Constitution. They are not repugnant 
 to the Constitution, unless, as is contended, that instru- 
 ment was established for the express purpose of creating 
 and maintaining an exclusive metallic standard of value; 
 which proposition, in my judgment, cannot be successfully 
 maintained. It is no objection to the means chosen to 
 execute a constitutional power, that private contracts 
 may be indirectly affected or impaired. This may be the 
 indirect effect of carrying into execution many of the ex- 
 press or implied powers of government. The embargo 
 laws impaired the obligation of numerous private con- 
 tracts, yet these laws were adjudged to be constitutional. 
 The government may debase the coin, and has done it, 
 yet the obligation of private contracts would be affected 
 precisely as by attaching to a paper currency the quality 
 of money, and subjecting it to the fluctuations of the 
 market. As parcel, therefore, of the means that might 
 be constitutionally used in executing the power to bor- 
 row, was a note of the government, clothed with the 
 capacity to circulate, and having the functions of money. 
 It is not denied that Congress may create and use such 
 an instrument, without the money and legal tender clause 
 as to private debts, in the exercise of the borrowing 
 power, or the power of paying the public debts, or of 
 
91 
 
 collecting the internal revenue. If it is constitutionally 
 fit and proper in the exercise of those powers to impart to 
 the treasury notes the quality of money for any purpose, 
 it is no objection that they are constituted a medium in 
 which private debts may be paid. The question is, 
 whether they may be lawfully made money at all. If 
 congress can clothe them with the attributes of money, 
 and as such, use them in payment and discharge of debts 
 due from and to the government, there is no valid reason 
 why they may not be made to have the same operation 
 in respect to private debts. Individuals are always par- 
 ties on one side or the other in transactions with the 
 government ; and the idea that it is an invasion of private 
 rights even to be compelled in private money transactions 
 to use the same currency, having the same standard of 
 value as that used in transactions between the govern- 
 ment and individuals, rests on no just or sensible founda- 
 tion. It is not true, however, that the direct result of the 
 legal tender clause as to private debts, is to compel the 
 creditor to surrender a portion of his debt to the man who 
 owes it. This effect is only worked out by assuming that 
 the creditor is entitled to have his debt paid in gold or 
 silver coin, and that whatever may be the difference in 
 value in the market between coin and legal tender notes, 
 is so much surrendered to the debtor. But his right is to 
 have his debt paid in lawful money, whether it be coin or 
 paper, and what he loses or gains cannot be estimated by 
 the market fluctuations in value of the medium. A trea- 
 sury note of the denomination of ten dollars is legally as 
 valuable for the purposes of money as a coined eagle. The 
 value of each is fixed at ten dollars money of account. If 
 a gold eagle be worth more in the market than a ten dollar 
 legal tender note, it is because it is wanted to pay duties 
 and settle balances abroad. Indeed, what is called a 
 demand note of the government, receivable for duties, has 
 a value in the market about equal to gold or silver coin. 
 The market value of gold and demand notes is, therefore, 
 regulated by the demand and supply. This demand for 
 gold may be for legitimate purposes, as suggested, and it 
 
92 
 
 may be for speculative or illegitimate purposes ; and, un- 
 fortunately, at the present time, most of the difference in 
 value of gold coin and legal tender notes, is the result of 
 a species of gambling in the metallic medium of circula- 
 tion, as private or public stocks are gambled with. It 
 cannot be said that a measure of value thus effected by 
 extraneous causes, fluctuating iu its character, which may 
 be more to-day and less to-morrow, can be any just crite- 
 rion of what a creditor loses or gains. Applying the test 
 to-day to the private creditor's contract, he may lose ; to- 
 morrow the market difference in value between gold and 
 legal tender notes may be nothing, so that whether he is 
 compelled to surrender anything by the legal tender pro- 
 vision depends upon circumstances fluctuating in their 
 nature, and extrinsic to the action of the government or 
 the creditor. But that the creditor releases anything is 
 more ideal than actual. Take the case of the defendant 
 in one of the present cases. What of value does he, in 
 fact, release by the operations of the legal tender provi- 
 sion? He did not lend gold, nor was the debtor's con- 
 tract to repay in the specific article. He drew his check 
 for $8,000, and the bauk transferred so much of his credit 
 to the borrower. The debtor received $8,000, but not in 
 gold. The medium of dealing between the parties was a 
 bill of credit. But now the creditor claims that he is en- 
 titled to be paid so many dollars in gold, stamped and 
 valued at the United States mint, because when the tran- 
 saction was had such coinage was the only lawful money 
 and a legal tender. Not getting it, however, how can it 
 be said that he has actually released value to his debtor? 
 He receives for his debt as many dollars in money by 
 being paid in treasury notes as if paid in gold eagles. 
 One description of money satisfies the contract equally 
 with the other. Indeed, the paper money discharges the 
 debt by the currency in which it was created. If the cre- 
 ditor surrenders value at all to the debtor, it is because 
 he may dispose of coin in the market at a higher rate 
 than he can a treasury note, and the former is more valu- 
 able as a medium of exchange in the commercial world 
 
93 
 
 than the latter. In this way, and in no other, can the 
 proposition that the operation of the legal tender provi- 
 sion is to transfer a part of a creditor's property to another, 
 be worked out. It might better be characterized as an 
 attempt to extort from the debtor more than the law 
 justifies or requires. 
 
 I am of the opinion, therefore, that the selection by 
 congress of the legal tender note as a means of carrying 
 into execution the borrowing power, the power of collect- 
 ing the internal revenue, and paying the debts of the 
 nation, was within the measure of its legislative authority 
 under the Constitution. As means, it was not forbidden 
 by that instrument. There is nothing in it expressly pro- 
 hibiting congress from creating and using a paper cur- 
 rency in the exercise of its specific constitutional powers, 
 and this is admitted. But it is said that the Constitution 
 was established for the express purpose of creating and 
 maintaining a metallic standard of commercial and mone- 
 tary values, and hence the making treasury notes money 
 and a legal tender is the exercise of a power repugnant to 
 the spirit of the instrument. There is nothing in the 
 letter of the Constitution indicative of a design of its 
 framers or the people that the government should be ex- 
 clusively a metallic currency government. It is true, that 
 one of the express powers conferred by congress was that 
 of coining money and regulating the value thereof, and of 
 foreign coin ; but the grant of this power does not show 
 that ours was intended to be an exclusively metallic money 
 government. Full effect may be given to the coining 
 money clause without imparting to the great and saga- 
 cious men who framed the instrument any such visionary 
 idea. The same duty and trust in respect to this power 
 was imposed on congress as in respect to all others of the 
 enumerated powers in the Constitution. It would be 
 going a great way to argue from the fact that the power 
 to emit " bills of credit " was proposed to be given to con- 
 gress in the first draft of the Constitution, and was subse- 
 quently stricken out ; that the purpose of inserting the 
 coinage clause was to impose on the government a special 
 
94 
 
 trust to create and maintain a national metallic currency, 
 to the exclusion of any other. But the fact has no signifi- 
 cance for any purpose. In the first draft of the Constitu- 
 tion, one of the clauses in enumerating the powers of con- 
 gress, read : " To borrow money and emit bills of credit." 
 In the progress of the deliberations of the convention, the 
 words "and emit bills of credit" were stricken out; but 
 as the instrument was finally adopted the clause read : 
 " To borrow money on the credit of the United States." 
 It is claimed that by striking out the words "and emit 
 bills of credit," the convention evinced the intention that 
 congress should not possess the power of creating or issu- 
 ing a paper currency, or passing laws making anything 
 but gold or silver a legal tender in the payment of debts. 
 The question is, not what the members of the constitutional 
 convention intended, but what was the intention of the peo- 
 ple who adopted the Constitution ; and this can only be 
 determined from the instrument itself. There is nothing in 
 the Constitution expressly prohibiting congress from passing 
 laws providing for issuing the notes of the government to be 
 used as currency, and making them a legal tender, though 
 the passing of laws making anything but gold and silver 
 a legal tender in payment of debts, was expressly prohi- 
 bited to the states. This latter prohibition is significant 
 as showing that the subject of tender was not overlooked 
 by the convention or people, and that having it in mind, 
 any restrictions upon the legislative power of the federal 
 government were omitted. 
 
 My conclusions are, that the act of congress, approved 
 on the 25th February, 1862, is not in any of its features 
 unconstitutional. The clause objected to, which makes 
 the notes issued by the government lawful money and a 
 legal tender in payment of public and private debts, was 
 not outside of the measure of the authority given to con- 
 gress in the execution of its powers. In carrying into 
 execution the power to borrow money on the public credit 
 (if iu the execution of no other specified power), it was 
 fully justified, as a means. There is no prohibition of the 
 use of such means in the Constitution, and congress, in 
 
95 
 
 executing the great governmental powers conferred by 
 that instrument, may use any modes or means, not prohi- 
 bited, most fit and appropriate in its judgment, whether 
 directly or indirectly conducive to the attainment of the 
 end of the power. That the public exigencies required a 
 resort to the particular means complained of, is most mani- 
 fest, though that was a question to be determined by con- 
 gress. We cannot, however, shut our eyes to the magni- 
 tude of the necessity. If the Constitution and the 
 national life were to be preserved, more money was 
 required than had ever been coined at the national mint 
 from the precious metals, and when the act was passed, 
 four times greater in amount than there was gold and 
 silver in the whole country. This money must be bor- 
 rowed, and mainly from our own people. We have been 
 admonished of the frightful consequences in the future, to 
 result from an irredeemable paper currency, based on the 
 credit of the nation ; but if all the evils so strongly pic- 
 tured, and which are mainly figments of the imagination, 
 were to occur, how insignificant in comparison with a 
 destruction of the government. If this magnificent gov- 
 ernmental structure of ours falls, it will matter little that, 
 in the effort to save it, disorder and ruin were brought on 
 the commercial and monetary interests of the country. 
 
 I am in favor of affirming the judgment of the supreme 
 court in the first of the above entitled cases, ai|d reversing 
 it in the latter. 
 
OPINION OF JUDGE EMOTT. 
 
 THE METROPOLITAN BANK and THE SHOE AND LEATHER BANK 
 
 Respondents, ' 
 
 agst. 
 HENRY H. TAN DYCK, Superintendent of the Bank Department, Appellant 
 
 LEWIS H. MEYER, Appellant, 
 
 agst. 
 
 JAMES I. ROOSEVELT, Respondent 
 
 Emott, J. The magnitude of the interests depending 
 upon the ultimate decision of these cases, and the momen- 
 tous principles which they involve, justify, in my opinion, 
 an expression by any judge who either concurs in or dis- 
 sents from the judgments now to be pronounced, of the 
 reasons which may lead him to his conclusion, i will 
 attempt to state my views of the cases with all possible 
 brevity. I consider the question presented to be the same 
 in each of the cases. In the case of Meyer v. Roosevelt, the 
 plaintiff is the owner of certain lands upon which the 
 defendant holds a mortgage made in 1854, and which is 
 past due. The owner of the equity of redemption, desir- 
 ing to cancel and remove this incumbrance, tendered pay- 
 ment to the holder of the amount due thereon. This 
 tender was made in the notes of the United States govern- 
 ment, issued under the act of congress passed February 
 25th, 1862, and which by the provisions of that act are 
 expressly declared to be lawful money and a legal tender 
 in payment of all debts public and private. The tender 
 was refused, and this suit is brought by submission under 
 the Code for a determination whether congress possesses 
 the power to make these notes a legal tender, and whether 
 upon their receipt the defendant must cancel and surren- 
 
 13 
 
98 
 
 cler his bond and mortgage, or whether payment can only 
 be made in gold and silver. The bond and mortgage are 
 set out in the case and are in an ordinary form. The bond 
 declares that the obligor is bound to the obligee in the 
 sum of sixteen thousand dollars lawful money of the 
 United States, for which payment he binds himself, his 
 heirs, &c. The condition is that if the obligor pay to the 
 obligee eight thousand dollars by a day set, with interest, 
 the obligation is to be void. It is an ordinary instrument 
 for the payment of money, an evidence of a debt, which 
 like all other debts is payable in lawful money, or in that 
 which is a tender for the payment of debts by the laws of 
 the country. The act of Congress makes the treasury notes 
 issued under its provisions such a tender, and the question 
 is whether congress possess the power to pass such an act. 
 This is simply a question whether congress may constitu- 
 tionally make anything but gold and silver a tender in 
 the payment of private debts, or may prescribe what shall 
 be a tender for the payment of such debts. 
 
 It is immaterial that when this contract was made 
 nothing but gold and silver was such a tender, if congress 
 has power to authorize a tender in a different sort of money. 
 It is said that the act making these government notes, 
 equally with gold, a tender for the payment of this and 
 other debts contracted before its passage, is unconsti- 
 tutional as impairing the obligation of contracts. The 
 opinion, however, has been expressed and would seem to 
 be well sustained, that the states only, and not the federal 
 government, are forbidden by the Constitution to pass laws 
 impairing the obligation of contracts. However this may 
 be, if this act of congress is open to no other excep- 
 tion, it cannot be successfully impeached for impairing the 
 contracts between debtors and creditors to which it may 
 apply. The contract of the obligor in this bond was 
 simply to pay the amount stipulated, as so many dollars, 
 in the lawful money of the country, that is, in that which 
 should be its lawful money when such payment was due. 
 It was not either in terms or in effect a contract for the 
 delivery or the return of so much gold and silver, except 
 
99 
 
 as that was involved in the idea of payment of the debt, 
 while gold was the only medium in which debts could be 
 paid. Gold and silver coin, and money, are not necessa- 
 rily convertible terms. The latter word is used in various 
 senses, and has various shades of meaning, according to 
 its employment or connection. It is generally the repre- 
 sentative of values, and the instrument of exchanges. 
 But it is no part of a contract of debt made at one time 
 for the repayment of money at another, that this repre- 
 sentative or instrument should possess the same exchange- 
 able value or the same purchasing power at the time of 
 payment as at the time of incurring the debt. All that 
 the debtor contracts to do is to return to his creditor in 
 dollars and cents as much as he has received, and the 
 advance and repayment are alike to be made in that 
 which, by competent and valid authority, is made the 
 medium of account and payment. The only question here 
 is whether, under the Constitution of the United States, 
 congress has the power to make notes or bills issued by 
 the government, such a medium and tender in payment 
 of debts. 
 
 In the case of the Metropolitan Bank and the Shoe and 
 Leather Bank against the Bank Superintendent, the plain- 
 tiffs, two banking associations in the city of New York, 
 were required, by formal demand, to pay or redeem a cer- 
 tain amount of their circulating notes. They each offered 
 to pay or redeem in government notes, issued under the 
 act of congress to which I have referred. The holder 
 refused to receive these notes, and demanded specie. The 
 notes were protested, but the holder did not bring an 
 action upon them, but applied to the superintendent of 
 the banking department, to sell the public stocks pledged 
 or placed in his hands, under the laws of the State of 
 New York, as security for the payment of these and other 
 notes of these banks. The banks in question resisted this 
 application, and a suit was brought, as in the other case, by 
 submission of the question to the supreme court, whether 
 the superintendent was bound to require, and the banks 
 were compellable to make payment or redemption of their 
 
100 
 
 notes in gold and silver, since the act of congress, to which 
 I have referred, or whether the notes issued under that act 
 were a sufficient tender for those bills when presented. 
 The general banking law of this state requires the super- 
 intendent of the banking department to take measures for 
 the sale of such securities, and the redemption of such 
 notes, whenever the association issuing the same shall fail 
 to redeem them in lawful money of the United States. (Oh. 
 260, Laws of 1840, p. 4.) The same question is therefore 
 presented between the holders of these notes issued as 
 money, and the banks which have issued them, as arises 
 in the other case between creditor and debtor. Each is 
 bound to redeem or fulfill its obligations in that which is 
 the lawful money or medium for the payment of debts, and 
 the superintendent of the bank department cannot re- 
 quire, or be compelled to require, of a banking association, 
 any more, in respect to its bills, than an individual debtor 
 can be compelled to do by his creditor. 
 
 The rights and duties of the superintendent, in applying 
 the peculiar remedy given by the statute for the payment 
 or redemption of this currency, are to be measured by the 
 statute. The Constitution of this state, it is true, declares 
 that the legislature shall require ample security for the 
 redemption of bank bills in specie. (Const. K". Y., art. 8, § 6.) 
 This constitutional provision, however, does not execute 
 itself. It calls for legislation, and must remain inopera- 
 tive until such legislation is had. The present Constitu- 
 tion of this state was adopted since the passage of the 
 general banking law, containing the provisions to which I 
 have referred. These provisions must be construed accord- 
 ing to their plain import, and the remedy which they give 
 can only be pursued in the cases and to the extent speci- 
 fied in the law itself. If these banks have offered to re- 
 deem their bills in lawful money of the United States, 
 they have complied with the law and are not exposed to 
 its inflictions. Lawful money of the United States, means 
 in this statute what it means in a bond or obligation, 
 money which is a lawful tender for the payment of debts. 
 Thus the same issue is presented here as in the case of 
 
101 
 
 Meyer v. Roosevelt, to wit, whether the act making gov- 
 ernment notes a tender for the payment of debts is a con- 
 stitutional exercise of legislative power. If it is, the 
 judgment of the supreme court in the bank case must be 
 affirmed, and that in the Meyer case reversed. If, on the 
 contrary, this court should be of opinion that congress 
 had no power to declare treasury notes a legal tender, 
 then the result will be the reverse in each case. 
 
 The Constitution of the United States is a grant of 
 powers, and creates a government of limited authority. 
 Although sovereign within the range of its authority, the 
 federal government cannot transcend that range nor exer- 
 cise any power which is not either expressly or impliedly 
 conferred by the instrument creating it. It is not claimed 
 that the congress of the United States is expressly pro- 
 hibited from making anything but gold and silver a tender 
 for the payment of debts. Undoubtedly, however, it is not 
 sufficient that no such express prohibition exists in the Con- 
 stitution. There must be authority either expressly given 
 or implied in some express grant of power, and resulting 
 from it as needful to its exercise, to pass such an act or to 
 legislate upon the subject to which it refers. It is not 
 asserted on the other hand, that power is expressly given 
 to congress by the Constitution to make the treasury notes 
 of the United States a tender in payment of debts, as indeed 
 no power is expressly given to legislate upon the subject of 
 tender at all. But it is contended that in the exercise 
 of certain powers which the Constitution does confer upon 
 congress, it is necessary and proper to issue treasury notes 
 and to make them a legal tender, not only to the govern- 
 ment but between individuals. 
 
 It has been sometimes said, in the discussion of this 
 subject, and oftener implied or suggested, that the power 
 to regulate the circulating medium, and to establish the 
 currency in which payments and exchanges may be made, is 
 a necessary function of every government, and that it is im- 
 plied or involved in the very creation of the government of 
 the United States, independent of any express grant confer- 
 ring or involving the power to legislate upon the subject. 
 
102 
 
 I cannot, however, yield to a theory which would impute 
 to the federal legislature these indefinite powers. If we 
 were dealing with a government neither constituted nor 
 coutrolled by a written fundamental law, it would be 
 impossible to deny that such legislation as that which we 
 are considering would be within its proper and ordinary 
 functions. To authorize or direct the issue of paper 
 money by the government, and to make that money a 
 tender in the payment of debts, are acts not foreign to 
 the idea of government abstractly considered, and not 
 unprecedented in the history of other governments. But 
 we are dealing with legislative authority conferred by 
 a written Constitution, and restricted to the measures or 
 the subjects specified in that Constitution. Supreme and 
 sovereign as the federal government is within its scope, 
 and although it is a government of the people, acting 
 upon them individually as its citizens, and not through 
 the states as a confederacy of separate sovereignties, yet 
 it is, as has been said, a government of limited powers. 
 It can draw to itself nothing as inherent in the idea of 
 government, but must look to the written charter of its 
 existence, for the warrant for any act which it seeks to 
 do. It can only exercise the powers granted to it, and a 
 grant of any particular power cannot be presumed from 
 its appropriateness or its supposed necessity to the idea 
 or the existence of a nation. There is no presumption or 
 implication to be indulged as to the powers of the federal 
 government, except that when a power is expressly given, 
 authority to do whatever is fairly appropriate to its execu- 
 tion is implied in the grant of the power itself. 
 
 The congress of the United States has power by the 
 eighth section of the first article of the constitution, " to 
 coin money and regulate the value thereof, and of foreign 
 coin." The term money isVed in different places in the 
 Constitution, as it is elsewhere, in somewhat different senses. 
 Here, however, it means, in my judgment, metallic money, 
 gold, silver, and copper, or the metals used for coin, and 
 nothing more. The phrase ' ' coining " cannot, without vio- 
 lence, be applied to the issue of paper money. To coin 
 
103 
 
 money is to make, stamp and issue coins as money. Coins 
 are pieces of metal, of a particular weight and standard, 
 and to which a particular value is given in account and 
 payment. The clause which follows, "to regulate the 
 value thereof," evidently means to authorize the regulation 
 of the value of the coin thus issued, or the money coined ; 
 and that this is strictly metallic money, appears from the 
 words immediately following, "and of foreign coin." 
 The design was to confer upon congress the power to 
 regulate the value of domestic and foreign coins, and as 
 the domestic money, whose regulation is thus conferred 
 upon congress is the money whose coinage is authorized 
 by the first part of the clause, the inference is irresistible 
 that this money is simply domestic coin or metallic money. 
 The clause confers upon congress absolute and exclusive 
 power over the circulating coin of the country, domestic 
 and foreign, by regulating the standard and coinage of the 
 former, and the value in account of the latter. 
 
 The second subdivision of the same section of the 
 Constitution authorizes congress "to borrow money on 
 the credit of the United States." Here the meaning of 
 the word "money" is necessarily somewhat different. 
 "Money," says Mr. J. Stuart Mill, in his Principles of 
 Political Economy, vol. II, book III, ch. VIII, p. 9, 
 "which is so commonly understood as the synonym of 
 wealth, is more especially the term in use to denote it 
 when borrowing is spoken of. When one person lends to 
 another, as well as when he pays wages or rent to another, 
 what he transfers is not the mere money, but a right to 
 a certain value of the produce of the country to be selected 
 at pleasure ; the lender having first bought this right by 
 giving for it a portion of his capital. What he really lends 
 is so much capital ; the money is the mere instrument of 
 transfer. But the capital usually passes from the lender 
 to the receiver through the means either of money or of an 
 order to receive money ; and at any rate it is in money 
 that the capital is computed and estimated. Hence 
 borrowing capital is universally called borrowing money." 
 
 The importance of these observations, and their appli- 
 
104 
 
 cation to the subject in hand, will be seen in a moment 
 when we advert to the supposed inconsistency in borrow- 
 ing money, by issuing bills or notes which are themselves 
 to circulate and perform the functions of money. In 
 borrowing money on the credit of the United States, it is 
 obviously not only competent but necessary to issue obli- 
 gations of some sort, as evidences of the debt, and binding 
 the United States to repayment. It could not be con- 
 tended that these obligations must be issued only in return 
 for money received, and not for capital or commodities of 
 which money is the representative. As the government 
 requires articles of various descriptions, or the services of 
 men, for its exigencies in war and in peace, it may give, as 
 it constantly has given for these values, its own obliga- 
 tions or evidences of indebtedness, and these are valid 
 and properly issued under the power to borrow money. 
 Such has been the construction, both practical and theo- 
 retical, of every school of our statesmen and jurists, and 
 no one would probably dispute the doctrine at this day. 
 Nor is it essential to the exercise of this power that the 
 contract between the government and the lender, or 
 the obligations issued, should provide for the repayment 
 of the money borrowed at any specific future day, or with 
 interest. This also must be considered to have been 
 settled by general consent, and the practice of the gov- 
 ernment. From a very early day treasury notes, or 
 government bills, payable on demand and without inte- 
 rest, have been issued in payment for property and ser- 
 vices. These bills or notes are what were known at the 
 date of the Constitution, and are mentioned in it, as "bills 
 of credit." Their issue is forbidden to the states. (Const., 
 Art. 1, sec. 19.) It is not authorized by the federal gov- 
 ernment, except by the general authority to borrow money. 
 In the case of Craig v. The State of Missouri, 4 Pet., 410, 
 Chief Justice Marshall, speaking for a majority of the 
 supreme court of the United States, defines bills of credit 
 to be "a paper medium intended to circulate between 
 individuals, and between government and individuals, for 
 the ordinary purposes of society." In the subsequent 
 
105 
 
 case of Briscoe v. The Bank of the Commonwealth of 
 Kentucky, 11 Pet., 257, 314, the same court, by Mr. 
 Justice McLean, while expressly adhering to the prin- 
 ciples of the case of Craig v. Tlie State of Missouri, 
 made the definition of a bill of credit as used in the 
 Constitution, somewhat more exact. "It is," said that 
 learned Judge, " a paper issued by the sovereign power, 
 containing a pledge of its faith, and designed to circulate 
 as money." To the same effect Mr. Webster said in his 
 speech on the currency in September, 1837: "Any paper 
 issued on the credit of the state, and intended for circula- 
 tion from hand to hand, is a bill of credit, whether made 
 a tender for debts or not, or whether carrying interest- or ' 
 not." I think it very material to the present question that 
 the issue of treasury notes, which evidently answers this 
 definition, and are "bills of credit," should have been by 
 general consent considered a constitutional exercise of the 
 power to borrow money. In May, 1838, Mr. Calhoun said 
 in the senate that the right to issue treasury notes had 
 been exercised from the commencement of the govern- 
 ment without being questioned, and according to his con- 
 ception came within the power expressly granted to 
 congress to borrow money, which meant neither more nor 
 less than to raise supplies on the public credit. Interest 
 was not essential to borrowing, and it would be ridiculous 
 to suppose that the framers of the Constitution intended 
 to authorize the raising of supplies with interest, and to 
 prohibit it without. In 1837-8, at the time of a great finan- 
 cial panic and distress, when the relations of the govern- 
 ment to the banks, and consequently of the banks to the 
 community, were changed by the measures of the admin- 
 istration and of congress, it was proposed to aid the 
 emergency by the issue of treasury notes. Mr. Webster, 
 while not averse to that particular expedient, desired that 
 the treasury notes should be of large amount and bearing 
 interest, so as to make them sought as^n investment. 
 Mr. Calhoun, on the contrary, distinctly 'urged that the 
 treasury notes should be without interest, in order to keep 
 them in circulation. He said: "I am of the impression 
 
 14 
 
106 
 
 that the sum necessary for the present wants of the trea- 
 sury should be raised by a paper which should at the same 
 time have the requisite qualities to enable it to perform 
 the functions of a paper circulation." He added that he 
 objected to the interest to be allowed on the notes pro- 
 posed to be issued, because it would throw them out of 
 circulation. He proceeded to argue in favor of the issue 
 of government bills, redeemable or payable on demand, 
 and receivable in payment of all public dues, as a sound 
 paper currency, both constitutional and beneficial, in a 
 higher degree than the notes of state banks or of a bank 
 of the United States. Both he and his great antagonist, 
 as well as all the public men of that day, differing widely 
 from each other upon questions of constitutional power, 
 clearly held that the issue of such bills as a currency 
 would be a constitutional exercise of the power to borrow 
 money. 
 
 It may be observed here that the fact that the Constitu- 
 tion forbids the emission of such bills of credit by the 
 states, was not supposed to furnish any implication that 
 congress did not possess that power ; and it as little results 
 from the prohibition to the states to make anything but 
 gold and silver a legal tender, that congress may not exer- 
 cise such a power. No inference either way can be drawn 
 from that prohibition. 
 
 It appears from the journal of the convention which 
 framed the Constitution, and from the Madison papers, 
 vol. III., p. 1343, that the clause authorizing congress to 
 borrow money was originally reported to the convention 
 with the addition of the words " and emit bills on the 
 credit of the United States," and that this latter part of 
 the clause was stricken out by the convention. Mr. Madi- 
 son says that this was done to cut off the pretext for a 
 paper currency, and particularly for making the bills a 
 legal tender. These facts are urged to show that the 
 power now in question was expressly and intentionally 
 withheld. They do undoubtedly show that such was the 
 design of a portion, perhaps of a majority of the trainers of 
 the Constitution. But on the other hand the practical and 
 
107 
 
 theoretical construction of this part of the Constitution, in 
 the subsequent administration of the government, to which 
 I have referred, shows that one part of this design was 
 not accomplished. Although the authority " to emit bills 
 on the credit of the United States" was expressly struck 
 out and apparently intentionally withheld, it has con- 
 stantly been recognized, and in this argument was con- 
 ceded to belong to the government, under its general 
 authority to borrow money. The design of the advocates 
 of the alteration which was made in the draft of the Con- 
 stitution is not entirely clear to me from Mr. Madison's 
 account of the transaction, but whatever it may have been, 
 it must yield to the actual and legal construction of the 
 words as they stand in the written instrument itself. 
 
 The construction given to the Constitution by its framers 
 and their contemporaries, the discussions in the conven- 
 tion which framed it, and the apparent intention with 
 which certain clauses were added or stricken out in their 
 deliberations, are constantly and justly referred to upon 
 questions of the meaning of constitutional provisions. 
 But the arguments derived from such sources are not 
 necessarily final or conclusive. A stronger case, or one 
 more indicative of purpose, could not easily be put than 
 the instance which has been cited, of striking from the 
 Constitution in its formation, a proposed express power to 
 issue bills of credit ; yet it is obvious that in exchanging 
 bills of credit, or government evidences of debt intended 
 for circulation as currency, for property or labor, the gov- 
 ernment does not borrow money, or the capital of which 
 money is the symbol, and it has therefore been seen that 
 while the power to borrow money remained, the right to emit 
 bills of credit exists, notwithstanding the latter had been 
 in terms expunged. The issue of such notes is an ex- 
 change of credit for money or property. All political 
 economists recognize the fact, that in issuing paper pro- 
 mises to circulate as currency, their makers whether gov- 
 ernments or individuals, are in effect borrowing on the 
 credit of these promises whatever of value they receive in 
 exchange for them. In spite therefore of what may have 
 
]08 
 
 been the design of the framers of the Constitution in this 
 particular, the language which they have left in that in- 
 strument has been found to bear a construction contrary 
 it may be to that design, but conformable to the exigencies 
 of the times, and the needs of the country. 
 
 It would be subjecting written constitutions to a severe 
 test as instruments of government, if the opinions, the 
 declarations, or even the intentions, of their framers were 
 accepted as final upon questions of their construction, 
 where there is a fair difference of opinion. Wise and far- 
 seeing as the men who framed the Constitution of the 
 United States unquestionably were, it would be attribut- 
 ing to them more than human sagacity to suppose that 
 they contemplated such a history of growth, extension 
 and change, as has been accomplished by this country, or 
 such an emergency as is now trying both its institutions 
 and its people. The element of weakness in written con- 
 stitutions, as in written codes, is their inflexibility and 
 inability to adapt themselves to the ever changing necessi- 
 ties of history and progress. So far as such constitutions 
 consist of express grants or express prohibitions, this is 
 inevitable, and it is undoubtedly a part of the security 
 which they offer to the citizen and even to the govern- 
 ment itself that it should be so. But when we enter the 
 domain of implied or constructive powers, the rules by 
 which we are to be governed must depend somewhat upon 
 additional considerations. Admitting, what no one denies, 
 that the powers and functions of the federal government 
 are limited, yet in the exercise of those powers and func- 
 tions, the legislature must be allowed a wide discretion in 
 the means to be employed for that purpose. In the 
 governance of that discretion, upon questions of appro- 
 priateness or necessity, the circumstances and exigencies 
 of the time must be more decisive than the opinions or 
 purposes of those who framed the instrument conferring 
 the discretion, without being able to foresee the occasions 
 which the future would bring forth for its exercise. 
 
 I am not contending that necessity can confer any addi- 
 tional powers upon such a government as ours, but simply 
 
109 
 
 that in the history of the country occasions will arise for 
 the use of means to accomplish the recognized objects of 
 the Constitution, different from what its founders could 
 have anticipated, and perhaps contrary to their expecta- 
 tions, and that in such event the question of constitutional 
 power is to be decided by a fair construction of the Con- 
 stitution itself, and by the appropriateness of the proposed 
 means to the proposed end, tested rather by the facts 
 of the day than by the judgment of the past or its history. 
 
 Taking it for granted that congress has power to issue 
 treasury notes or bills of credit to circulate as currency, 
 in order to borrow money upon the credit of the United 
 States, the question before us comes to whether congress 
 may confer upon these notes the character of a legal ten- 
 der in order more effectually to accomplish the object of 
 borrowing money by or upon them. 
 
 The principles upon which the Constitution is to be con- 
 strued in cases where the act in question is neither expressly 
 authorized nor expressly forbidden, received, as is well 
 known, an exhaustive discussion in the case of McCullochv. 
 The State of Maryland, 4 Wheat., 316. 
 
 The memorable and masterly judgment of Chief Justice 
 Marshall, in that case, leaves nothing to be said upon 
 the abstract questions which lies at the bottom of this and 
 similar disputes. In discussing the meaning of the words 
 "necessary and proper," as used in the general authority 
 conferred to pass laws for carrying into execution the ex- 
 press powers of congress, the Chief Justice said : " The 
 subject is the execution of those great powers on which 
 the welfare of a nation essentially depends. It must have 
 been the intention of those who gave these powers, to 
 insure, as far as human prudence could insure, their bene- 
 ficial execution. This could not be done by confining the 
 choice of means to such narrow limits as not to leave it 
 in the power of congress to adopt any which might be 
 appropriated and which were conducive to the end. This 
 provision is made in a constitution intended to endure for 
 ages to come, and consequently to be adapted to the vari- 
 ous crises of human affairs. To have prescribed the means 
 
110 
 
 by which the government should, in all future time, exe- 
 cute its powers, would have been to change entirely the 
 character of the instrument and give it the proportions of 
 a written code. It would have been an insane attempt to 
 provide by immutable rules for exigencies which, if fore- 
 seen at all, must have been seen dimly, and which could 
 best be provided for as they occur, To have declared that 
 the best means shall not be used, but those alone without 
 which the power given would be nugatory, would have 
 been to deprive the legislature of the capacity to avail 
 itself of experience, to exercise its reason, and to accommo- 
 date its legislation to circumstances." And he gives the 
 rule in language often quoted : 
 
 "Let the end be legitimate, let it be within the scope of 
 the Constitution, and all means which are appropriate, 
 which are plainly adapted to that end, which are not pro- 
 hibited, but consist with the letter and spirit of the Con- 
 stitution, are constitutional." If the measure proposed is 
 an appropriate means to a legitimate end, the degree of 
 its necessity is to be discussed elsewhere than in a judicial 
 forum. So again the Chief Justice said in the same case: 
 " When the law is not prohibited and is really calculated 
 to effect any of the objects entrusted to the government, 
 to undertake here to inquire into the degree of its neces- 
 sity would be to pass the line which circumscribes the 
 judicial department, and to tread on legislative ground." 
 
 We are brought by such considerations, I conceive to a 
 narrow issue, after all, in this case. It is not denied that 
 making treasury notes a tender between individuals is 
 not in terms prohibited to congress by the Constitution, 
 although it is to the several states. The question that 
 remains is, whether such a measure is appropriate to the 
 object of borrowing money upon them. I cannot doubt, 
 after long and anxious consideration of the subject, that 
 it is. 
 
 It is conceded that congress may issue these notes in 
 a form and manner to make them readily pass and 
 continue in circulation as currency, in order more easily 
 to borrow or obtain property or value by its use. Nor 
 
Ill 
 
 is it disputed that the power which has been hereto- 
 fore exercised of making such notes a tender for dues to 
 the government is appropriate to the same end. Mr. Cal- 
 houn considered it so much so that he supposed that 
 nothing else was needed to make such notes a permanent 
 and perpetual paper currency, and of course to enable the 
 government to obtain as a loan without interest for an 
 indefinite time, the whole amount of that currency. It is 
 sufficiently plain that to make such notes also a tender 
 between individuals, must, or at least may add still more 
 to their use and currency, and so tend to keep a much 
 larger amount in circulation. When the point is estab- 
 lished that government has power to issue a currency as a 
 means of borrowing from the people, the inference is irre- 
 sistible to my mind that it may confer upon such a cur- 
 rency any and all attributes not expressly forbidden by 
 the Constitution, which will enhance its value and increase 
 the amount likely to be retained in circulation and use. 
 
 It does, indeed, at first consideration, appear like a 
 solecism to say that congress is authorized to issue paper 
 money, as a means of borrowing money. But the confu- 
 sion arises from the different senses or shades of meaning 
 in which the word money is used, as a circulating 
 medium, or as a synonym of capital or value. The fact 
 itself is simply an instance of the theory upon which all 
 issues of exchequer bills, bank notes or paper credits, to 
 circulate as currency, are made profitable, to wit: that 
 whoever parts with value, in exchange for such paper 
 credits, in fact lends to the government or the individual 
 which issues them. There is really no solecism or contra- 
 diction in the idea of borrowing money by issuing paper 
 currency. Making the bills of credit which constitute this 
 currency, a legal tender, is a measure of the same general 
 nature, and as appropriate to the end to be accomplished 
 by their exercise, as it is to confer upon them any of the 
 other attributes of use or value which have from time to 
 time been given to them or to other obligations of the 
 government. 
 
 It is a means directly related to that end by a connec- 
 
112 
 
 tion which is palpable and distinct. The necessity or the 
 degree of necessity of such a measure is a question which 
 belongs to the legislature and not to the courts. It is 
 enough to forbid our interference that we shall be able to 
 see that the act is not forbidden by the fundamental law, 
 and that it appropriately and properly tends to the accom- 
 plishment of one of the material objects of the gov- 
 ernment, or to the exercise of one of the great powers 
 conferred upon the federal legislature to effect these 
 objects. Of the wisdom of such a measure, or of the 
 necessity which demanded a resort to it, another branch 
 of the government, and not the courts, is the judge, and 
 for the consequences of its use, whatever they may be, 
 others are responsible. 
 
 The conclusion thus indicated is not without strong 
 support from decisions of the supreme court of the United 
 States in cases strongly analogous to the present. In 
 Weston v. The City of Charleston, 2 Pet., 449, it was held, 
 and the principle has been affirmed and extended in the 
 recent tax case in which the judgment of this court was 
 reversed, that congress can exempt from all state taxation 
 the bonds or stocks issued by the United States. No ex- 
 press power to confer such a right upon government bonds 
 or their owners is contained in the fundamental law, and 
 no other property or evidences of value can be endowed 
 by congress with such a privilege. The power to make 
 this important exception to the reach of state legislation 
 is derived wholly by implication from the power which the 
 Constitution contains to borrow money on the credit of 
 the United States. 
 
 The analogy to the legislation now under consideration, 
 is in one aspect very exact. It is said that the subject of 
 contracts is left by our system to state legislation exclu- 
 sively. But the assessment and collection of local taxes 
 is equally within the domain of state power, and no right 
 is more jealously asserted as an attribute of sovereignty 
 by the several states, than the right to subject all property 
 within their limits to the taxes necessary for the support 
 of their governments. Yet large masses of property and 
 
113 
 
 values are abstracted from the reach of state laws by the 
 federal legislation to which I refer, legislation resting 
 wholly upon a power implied from the propriety or advan- 
 tage of conferring such attributes on federal evidences of 
 debt, in order to aid the federal government in borrow- 
 ing money. 
 
 In all such instances, the incidental consequences to the 
 states or to individuals, however far-reaching, are no an- 
 swer to the assertion of a power by the general govern- 
 ment, if it be appropriate and adapted to an object which 
 that government was expressly authorized to pursue. 
 
 It should also be observed, that although the laws of 
 contracts with their rights and remedies as between citizen 
 and citizen, do unquestionably belong to the states, and not 
 to the federal government, yet the regulation of the value 
 and denomination of the money or medium in which con- 
 tracts of indebtedness are to be performed, is within the con- 
 trol of congress, and with it necessarily the general subject 
 of tender. The money of account and payment in all private 
 as well as public transactions is the money of the United 
 States ; and no one has ever questioned the power always 
 exercised by congress to declare its own or foreign coins a 
 tender in the payment of debts. The power to declare 
 what shall be such a tender obviously belongs to the 
 federal government and not to the states, and our inqui- 
 ries have therefore been limited, in effect, to the question 
 whether this power is restricted to the use of gold and 
 silver only. 
 
 By the course of reasoning which I have thus indicated, 
 and which might of course be much elaborated, I have 
 been brought to the result that the congress of the United 
 States possesses the power to make the United States 
 treasury notes or bills of credit lawful money and a tender 
 in the payment of debts, and that judgment should be 
 rendered in these two cases accordingly. 
 
 In concluding these observations, which have already 
 been made more extended than I supposed they would or 
 intended they should be, I will only add a single remark. 
 It is, I think, proper for me frankly to say that I ap- 
 
 15 
 
114 
 
 proaclied the consideration of this great question with a 
 desire to sustain the act of congress, whose validity is 
 called in question. As much as this is due, in my judg- 
 ment, to any and every act of the supreme legislature of 
 the nation. But this just repugnance to thwart that leg- 
 islative will or prohibit its exercise is enhanced in the 
 present instance by the consideration of the grave respon- 
 sibility assumed by any citizen, who, in any way or in any 
 sphere of action, will interpose hindrances or obstacles to 
 the efforts of the government to suppress the great and 
 wicked rebellion, which has brought so much misery upon 
 us — a rebellion as little justified in morals as in legal or 
 constitutional right. 
 
 Notwithstanding such considerations, however, the ques- 
 tion for us, as judges, is simply one of law ; and if our 
 judgments had been adverse to the right of congress to 
 pass this law, our oaths and our consciences are paramount 
 to all other considerations. In this connection I must also 
 say, that I commenced the examination of this question 
 with serious doubts of the power of congress to pass this 
 law, and with an impression adverse to its validity. De- 
 liberate examination has removed these doubts, and I give 
 my judgment with a clear and unhesitating conviction of 
 the power of congress to make government notes a legal 
 tender, as a pure question of constitutional law, and with 
 the satisfaction which attends a clear belief so carefully 
 reached upon a point of such importance. 
 
OPINION OF JUDGE MARVIN. 
 
 THE METROPOLITAN BANK and THE SHOE AND LEATHER BANK 
 
 HENRY H. VAN DTCK Superintendent of the Bank Department, Appellant. 
 
 Marvin, J. The plaintiffs are corporations for bank- 
 ing purposes, formed under the general banking law of 
 the State. They issue promissory notes or bills for circu- 
 lation, payable on demand, without interest. In March, 
 1863, certain of these notes were presented for payment 
 "in the gold and silver coin of the United States of 
 America." Each of the plaintiffs refused so to pay or 
 redeem, but each tendered an amount, nominally the same, 
 of treasury notes, issued under the act of congress, ap- 
 proved Feb. 25, 1862, in redemption of such circulating 
 notes. The holder of such bills refused to accept such 
 treasury notes in payment. The act of congress declared 
 that such treasury notes "shall be receivable in payment 
 of taxes, interest, debts, and demands of every kind, due 
 to the United States, except," &c, "and shall also be 
 lawful money, and a legal tender in payment of all debts, 
 public and private, within the United States, except duties 
 on imposts and interest as aforesaid." 
 
 The questions presented and argued by the appellant's 
 counsel are in this form : " First. Has congress the power 
 to make the paper promises of the federal government a 
 legal tender in payment of any debts not due to that gov- 
 ernment ? Secondly. If it has this power in respect to 
 any debt, not due to the federal government, can a bank 
 of this state avail itself of such an enactment and tender 
 
116 
 
 these federal paper promises in redemption of its bills, 
 and thus estop the execution of the trust by which the 
 state has secured the redemption of those bills out of a 
 fund pledged for the express purpose by solemn provision 
 of law." It is conceded that congress has power to autho- 
 rize the issue of treasury notes, and make them receivable 
 in payment of all debts and dues to the federal govern- 
 ment. But the authority of congress to make them 
 " lawful money and a legal tender in payment of all debts, 
 public and private, within the United States," is chal- 
 lenged and denied. 
 
 I shall assume, without stopping to prove, what has 
 often been established upon judicial investigation and by 
 judicial decisions, by a court having the right to investi- 
 gate and decide, that the instrument known as the Consti- 
 tution of the United States, is a Constitution; ordained and 
 established by the people of the United States. That it 
 contains certain specified powers and provisions which, 
 when carried into effect, produced a government, possessed 
 of the right to maintain and perpetuate itself for all time. 
 The product of the Constitution is government, and such 
 was the intention of those who ordained and established 
 it. It is not a league, a compact, an alliance of states, but 
 it provided for a government, that should have, by the 
 exercise of the powers therein specified, a right to make 
 laivs and compel obedience to such laws. The powers of 
 such government, though limited and specified, are su- 
 preme within their sphere of action, and so also are the 
 powers of the state governments, the latter not being 
 usually specified in the state constitutions. 
 
 There can never, in theory or legally, be any conflict 
 between the two jurisdictions, and we owe allegiance 
 alike to each. There can be no conflict, and there should 
 be no embarrassment touching the question of allegiance, 
 as the Constitution of the United States declares: "This 
 Constitution, and the laws of the United States, which 
 shall be made in pursuance thereof, &c, shall be the 
 supreme law of the land, and the judges in every state 
 shall be bound thereby, anything in the Constitution or 
 
117 
 
 laws of any state to the contrary notwithstanding." Art. 6. 
 When, therefore, any act of the government is challenged, 
 the sole inquiry and question for decision is, was such 
 act authorized by the Constitution? If the act is done 
 under a law of the United States, the inquiry will be, was 
 such law "made in pursuance of the Constitution?" If 
 the question raised is answered in the affirmative, state 
 laws and constitutions in conflict therewith must yield. 
 They are invalid and not binding upon the citizen. If 
 the question is answered in the negative, then the act 
 done was unauthorized and is void. Much has been said 
 and written touching the rules proper to be adopted for 
 the construction of the Constitution; some claiming a 
 liberal, enlarged construction; others, a narrow, strict 
 construction. Governmeuts are established for the bene- 
 fit of those subject to them. This is emphatically so of 
 republican governments. The state government is for 
 the benefit of the people as well as the United States 
 government, and in times of peace and the harmonious 
 action of both governments, the state government ope- 
 rates upon and affects the interests of the people far more 
 than the United States government. Its jurisdiction 
 embraces vastly more subjects, and affects more interests. 
 As both governments are for the benefit of the people, I 
 apprehend that when a question of conflict between the 
 two governments arises, the rule, that a liberal construc- 
 tion should be applied, because the government is bene- 
 ficial, can have little application. The true rule, in my 
 judgment, in such a case, is to consider fairly the provi- 
 sions of the Constitution of the United States, and ascer- 
 tain whether the given case is within them, aud if not, 
 then to abstain from exercising jurisdiction. It is very 
 important that all the jurisdiction of the states over 
 matters exclusively confided to them, should be carefully 
 preserved, and that the government of the United States 
 should be confined to the limits prescribed by the Consti- 
 tution to which it owes its existence. 
 
 These suggestions do not question the rule of liberal 
 construction, as applied to the subjects which may be em- 
 
118 
 
 braced in the specific powers conferred upon congress, 
 and when it becomes a question, whether such powers 
 authorize the doing of certain things, undoubtedly all the 
 attending circumstances are to be taken into consideration, 
 as in the construction of contracts, with a view of deter- 
 mining whether the power fairly embraces the cases. The 
 nature of a constitution, in the language of Chief Justice 
 Marshall, "requires that only its great outlines should 
 be marked, its important objects designated, and the 
 minor ingredients which compose those objects, be de- 
 duced from the nature of the objects themselves." He 
 says: "A constitution, to contain an accurate detail of 
 all the subdivisions of which its great powers will admit, 
 and of all the means by which they may be carried into 
 execution, would partake of the prolixity of a code, and 
 could scarcely be embraced by the human mind. It 
 would probably never be understood by the public." 
 
 The nature of a constitution, then, is to mark the great 
 outlines, and designate the important objects of the gov- 
 ernment to be established. This is of necessity so, as 
 to all organized bodies, some fundamental canons are 
 enacted defining their creed or specifying their powers. 
 
 The Constitution, after specifying certain powers to be 
 exercised by congress, adds : " and to make all laws that 
 shall be necessary and proper for carrying into execution 
 the foregoing powers, and all other powers vested by this 
 Constitution in the government of the United States, or 
 in any department or officer thereof." 
 
 In McCulloch v. The State of Maryland, 4 Wheat., 314, 
 this provision underwent a most elaborate examination by 
 Chief Justice Marshall, and I shall not attempt to add 
 anything to his masterly exposition of it. 
 
 I do not know that I object to the exposition of this 
 provision of the Constitution, as made upon the argument 
 of this case, by the learned counsel (Mr. Curtis) for the 
 appellant. Undoubtedly the law enacted under this pro- 
 vision must sustain a proper relation to the previously 
 granted powers, and must be necessary and proper for 
 carrying into execution some one or more of those powers, 
 
119 
 
 or some other power vested iu a department or an officer 
 thereof. And I agree that congress is not necessarily the 
 exclusive judge of such relation, and of the necessity and 
 propriety of making such law. Its decision may be ques- 
 tioned before the judicial powers, which may decide that 
 the relation, necessity and propriety did not exist, and 
 thus adjudge the congressional act unauthorized. The 
 judicial powers will not be justified in considering the 
 degrees of necessity and propriety, or in instituting com- 
 parisons between the measure adopted by congress and 
 some other measure better calculated, in the opinion of 
 the court, for carrying into execution the granted power. 
 Chief Justice Marshall, in the case referred to, sums up 
 the argument by saying: " We admit, as all must admit, 
 that the powers of the government are limited, and that 
 its limits are not to be transcended. But we think the 
 sound construction of the Constitution must allow to the 
 national legislature that discretion, with respect to the 
 means by which the powers it confers are to be carried 
 into execution, which will enable that body to perform the 
 high duties assigned to it in the manner most beneficial to 
 the people. Let the end be legitimate, let it be within the 
 scope of the Constitution, and all means which are appro- 
 priate, which are plainly adapted to that end, which are 
 not prohibited, but consistent with the letter and spirit of 
 the Constitution, are constitutional." 
 
 Let us now bring into view some of the "foregoing 
 powers " expressly conferred upon congress. They are : 
 " to levy and collect taxes, duties, imposts and excises, to 
 pay the debts, and provide for the common defence and 
 general welfare of the United States ;" "to borrow money 
 on the credit of the United States ;" " to regulate com- 
 merce with foreign nations, and among the several 
 states ;" to coin money, regulate the value thereof, and of 
 foreign coin ;" " to declare war, grant letters of marque 
 and reprisal;" "to raise and support armies;" "to pro- 
 vide and maintain a navy." (Art. 1, § 8.) There are some 
 prohibitions. Let us notice them here. " No capitation 
 or other direct tax shall be laid unless," &c. ; " no tax or 
 
120 
 
 duty shall be laid on any article exported from any state." 
 (§ 9.) There are some other limitations upon the powers 
 not necessary to be here noticed. There are some limita- 
 tions of the powers of the states which should be care- 
 fully noticed. "ISTo state shall enter into any treaty, 
 alliance, or confederation, grant letters of marque and 
 reprisal ; coin money, emit bills of credit ; make anything 
 but gold and silver coin a tender in payment of debts ; 
 pass any bill of attainder, ex post facto law, or law impair- 
 ing the obligation of contracts." 
 
 "No state shall, without the consent of congress, lay 
 any duty or tonnage, keep troops or ships of war in time 
 of peace, enter into any agreement or compact with 
 another state, or with a foreign power, or engage in war, 
 unless actually invaded, or in such imminent danger as 
 will not admit of delay." (§ 10.) Let us add, for the pur- 
 pose of showing the independent character of the govern- 
 ment within its proper sphere : " The executive power 
 shall be vested in the president of the United States of 
 America." (Art. 2, § 1.) The Constitution makes provi- 
 sion for courts in which the judicial power of the United 
 States shall be vested. Some amendments were made, 
 and in article 10 it is declared : " The powers not delega- 
 ted to the United States by the Constitution nor pro- 
 hibited by it to the states, are reserved to the states 
 respectively, or to the people." On reading these clauses 
 containing powers and limitations, and certain prohibi- 
 tions of powers to the states, powers national and com- 
 mon to all nations possessed of independence ; of full sove- 
 reignty, what impression is produced upon the mind, 
 touching the character of the government about to be 
 brought into being? Its powers are not numerous, but 
 they are of the vastest importance to the well-being of all 
 the people occupying the country included within the 
 limits of the United States, and the happiness and pros- 
 perity of such people was, and is, to depend mainly, upon 
 the faithful execution of these powers. The people, 
 through their state organizations, can enter into no treaty, 
 alliance or confederation ; they cannot engage in war, nor 
 
121 
 
 coin money. These, and some other powers, are prohibited 
 to them and are conferred upon the federal government 
 exclusively. They are prohibited from making anything 
 but gold and silver coin a tender in payment of debts, 
 and unless the federal government has this power it is 
 extinct, and can have no existence among the people who 
 have established the state and national governments. 
 Whatever the emergency, however fatal it may be to the 
 states, to the United States, to the people, that gold and 
 silver coin, under all circumstances, shall be demandable 
 iu payment of debts, there is no power to relieve them. 
 The people have annihilated this power, unless it is pos- 
 sessed by the United States government, and they are in 
 a condition unknown to any people that have ever consti- 
 tuted a community, under any form of government known 
 to mankind. The relation of debtor and creditor has, in 
 all ages, in civilized nations, been regarded as a matter of 
 great importance, and has always been subject to the regu- 
 lation and control of the sovereign legislative power. 
 History informs us of numerous instances in which the 
 legislative power of nations has been invoked to interfere 
 between the debtor and the creditor, and they have inter- 
 fered for the relief of the debtor, and thereby saved the 
 nation from convulsions, and perhaps ruin. 
 
 But with us, if the power is gone, whatever may be the 
 condition of the country and its money, though the "gold 
 and silver coin "may have disappeared ; though its value, 
 compared with all property, real and personal, may have 
 appreciated an hundred fold, yet the debtor must produce 
 it in payment of his debt. In short, the creditor may 
 have the power of appropriating of his debtor's property 
 ten or a hundred times as much as he transferred to his 
 debtor, a year or two before, for the very debt he is col- 
 lecting. These are not extravagant suppositions; but, 
 whether they are or not, they illustrate my position— that 
 the debtor class in time of national calamity, in the ab- 
 sence of the precious metals, may be ruined, and their 
 property transferred to the creditor class, though there 
 may be as much or more property and real wealth, in the 
 16 
 
122 
 
 country, as there had been at any time previous. I repeat 
 that this power of interference by the government, be- 
 tween the debtor and the creditor, has always existed in 
 other nations, and has, in times of emergency, been often 
 exercised, and a mode for extinguishing debts, other than 
 with the precious metals, has been authorized. The power 
 has been exercised for the good of the nation as a whole, if 
 not for its very salvation. I concede, of course, that if this 
 important governmental power is extinguished throughout 
 the limits of the United States, this is an end to the ques- 
 tion we are considering. 
 
 In my opinion it is not extinguished ; and I will proceed 
 to state some reasons for this opinion : 
 
 In giving construction to contracts, wills, statutes, in- 
 deed, any written instrument, it is important to under- 
 stand clearly the subject to which the written language 
 was or should be applied. This rule is emphatically ap- 
 plicable in giving construction to the Constitution. The 
 meaning of the language used must be understood ; and 
 the subject matters to which the language relates or which 
 may be fairly embraced within the language creating the 
 powers : the condition of things coexisting with the 
 making of the Constitution, and which might be reason- 
 ably anticipated to exist in the future, should be consid- 
 ered in giving construction to the various provisions of 
 the Constitution, and to the Constitution as a whole. 
 There existed at the time thirteen states, and it was 
 understood that this number would be increased. Each 
 of these states possessed all the powers pertaining to 
 independent nations, except as modified or restricted by 
 the articles of confederation. They possessed powers 
 common to all independent nations : of regulating their 
 own commerce, and the law of contracts; of making- 
 money or declaring what should constitute money ; and, 
 of course, what should pay debts. They could emit bills 
 of credit ; issue their own paper money and make it re- 
 ceivable in payment of debts. They could discriminate, 
 in regulating commerce, in favor of their own citizens, 
 and against the citizens of other states or nations. Under 
 
123 
 
 such circumstances it was obvious, indeed, it was already 
 proved, that there could be no such thing as harmony 
 touching any of those matters. Most of the then states 
 possessed harbors upon the ocean, and were engaged in 
 foreign commerce, and commerce among themselves. 
 There could be no uniformity of regulations touching 
 such commerce. Some of the states tried to agree upon 
 a system for themselves and failed. 
 
 The system of one state would nullify the system of 
 another, or other states. Free importations by one state 
 would render impracticable the system of other states, im- 
 posing duties for revenue or for the protection of home 
 industry. 
 
 Embarrassing and unreasonable regulations, touching 
 commerce between the citizens of one state and other 
 states, would be made. Bach state might have a moneyed 
 system unlike that of any other state ; a system of weights 
 and measures entirely different. Commerce between the 
 citizens of one state and other states might be prohibited 
 and destroyed. The confederacy had no power to derive 
 a revenue from importations, nor had the states practically 
 this power, as they would never be able to agree upon a 
 common system, and owing to their geographical positions, 
 any system other than free trade, would be practically 
 nullified by the action of the other states. This state of 
 things could not last. The people were powerless to pro- 
 tect their interests. A change was necessary, if they were 
 to indulge hopes of future prosperity. This practically 
 powerless condition of the people was an important, if not 
 the most important, reason for making an effort to devise a 
 remedy, and the remedy devised was the Constitution. A 
 leading object of the Constitution was to get rid of all 
 conflicting commercial interests, and as to commerce, to 
 effect a union of all the people of all the states, great and 
 small, and make them one people, one nation, without 
 divided interests, and without power, as states, to produce 
 divided interests or conflicts. This was a leading idea in 
 favor of the Constitution, and to me it has always seemed 
 the most valuable one. Was this idea carried into effect 
 
124 
 
 by the Constitution? I think it was clearly and fully.. 
 It required several provisions to effect the object ; some 
 conferring powers upon the new government; others 
 prohibiting the exercise of certain powers to the state 
 governments. Hence were granted the powers : " To 
 regulate commerce with foreign nations, and among the 
 several states, and with the Indian tribes." " To establish 
 uniform laws on the subject of bankruptcies throughout 
 the United States ;" " to coin money, regulate the value 
 thereof, and of foreign coin, and fix the standard of weights 
 and measures." And in addition, the power to make all 
 laws necessary and proper for carrying into effect these 
 powers. The prohibitions upon the states, in connection 
 with commerce, are, that they shall not emit bills of credit, 
 make anything but gold and silver coin a tender in pay^ 
 ment of debts, or pass any " law impairing the obligation 
 of contracts." These provisions, I think, accomplish the 
 object intended, viz. : the committing to congress, the 
 common representative and agent of all the people, 
 the exclusive power to establish a uniform system of 
 commerce throughout the United States. All these powers 
 have a very important connection with and relation to 
 commerce, over which the common government was to 
 exercise great, if not exclusive, control for the common 
 benefit of all the people of all the states. Now what is 
 commerce ? I need not stop to look up and quote defini- 
 tions of commerce. We know that it consists in the 
 exchanging of property, or the buying and selling of com- 
 modities ; the latter as generally understood. And as so 
 understood it cannot be carried on without money. In 
 the absence of money it must substantially perish ; some- 
 thing called money must exist. It is a necessity to com- 
 merce — an aid always attendant upon it. And the power 
 that regulates commerce should, theoretically, be the ex- 
 clusive power to create money, to say what shall be 
 money, the representation of values, and it should have 
 the power to regulate its quantity, not that such power, 
 by way of changing the quantity, should be often or 
 capriciously exerted. The language of the Constitution is 
 
125 
 
 "to regulate commerce with foreign nations, and among 
 the several states," and " to make all laws which shall be 
 necessary and proper for carrying into execution these 
 powers." And it is argued that these powers are not 
 broad enough to embrace the case we are considering. 
 That power expressed is limited to regulating commerce, 
 and this only, "with foreign nations and among the 
 several states." That congress can only regulate, not 
 create, and that it cannot even regulate commerce within 
 the states. Commerce was never created by a mere act 
 of legislation. It must have production to supply it with 
 materials to be sold and bought. But legislation may 
 protect the products of labor— may stimulate and encour- 
 age labor, and furnish money, making it easy to buy and' 
 sell property. It may, by many regulations of commerce, 
 cause industry to take such direction as to produce the 
 materials for commerce. Regulations of commerce with 
 foreign nations may be productive of great individual, and 
 consequently national wealth, or great poverty. And the 
 same effects may follow regulations of commerce among 
 the states. Money is necessary to commerce. And the 
 kind of money, and the quantity, may be, indeed are, 
 direct regulators of commerce. Without money there 
 would be no commerce; with certain kinds of money 
 there would be little commerce, such as Lycurgus estab- 
 lished, iron. With convenient money, in suitable quan- 
 tities, commerce may be active and profitable to the 
 people and nation. But it is said that the power to make 
 government promises a tender in payment of private debts 
 has not been granted to congress, and this is so eo nomine; 
 nor has the power, by name, been given to congress to do 
 very many things that it has done, some of which have 
 been questioned, others not. Congress has established a 
 military school ; it has enacted criminal statutes touching 
 a variety of subjects; it has chartered banks, &c, &c. If 
 it be shown that money is a necessity to commerce, as well 
 to regulate it as to invite its presence, it will follow that 
 some power must exist somewhere to make money, or 
 make something to perform the office of money. The 
 
126 
 
 states clearly have not the power. They cannot coin 
 money and regulate its value. It has been sometimes 
 argued, conceding that the power which regulates com- 
 merce should also regulate the money, and that it has, as 
 a legitimate, if not necessary consequence, the right and 
 power to do so, yet, as the Constitution had expressly 
 conferred upon congress the power to coin money and 
 regulate its value, and the value of foreign coins, that it 
 has no other power over or concerning money. That the 
 maxim expressio unius exclusio ulterius applies. The power 
 to coin money, &c, is not a limitation upon the power to 
 regulate commerce. It may be one of the means, but not 
 the only one. If it is, then, as I have already remarked, 
 commerce can never be regulated by any other means, 
 and in the absence of coined money, or a sufficient quantity 
 of it to circulate the vendable commodities, a contingency 
 quite likely to arise, commerce may languish, decline and 
 possibly perish. 
 
 But it may be further objected that this power of regu- 
 lating commerce is limited to foreign nations and to com- 
 merce among the states, that is, between the people of one 
 state and another, and that therefore congress cannot 
 make any regulation touching the commerce in a state, 
 that is, such as may be confined within the limits of a 
 state, and cannot, therefore, do anything affecting such 
 commerce. I apprehend that any attempt to distinguish, 
 so far as commerce is to be affected by money, between 
 commerce in a state, and commerce " among the several 
 states," will always prove a failure. The products of 
 any state enter directly or indirectly into the commerce 
 " among the states." The manufactures of New England 
 are consumed in all the states, and the grains and other 
 productions of the western and middle states find a mar- 
 ket in all the. other states, and so also of the productions 
 of the south. And it may be added, that this is mainly 
 owing to the commercial provisions of the Constitution, 
 and the wisdom of the government resulting from it. But 
 it is only necessary to a proper relation between these com- 
 mercial powers and the necessity and propriety of an act 
 
127 
 
 for carrying them into effect, that it appear that such act 
 regulates commerce with foreign nations or among the 
 states. Now no one will question the position that that 
 which will compulsorily discharge debts; that which in 
 numerical quantities previously ascertained may be ten- 
 dered in payment of debts of like numerical amount, will 
 be a great and controlling regulator of commerce, and all 
 the commerce of the country. 
 
 If the thing be inconvenient for circulation, it will em- 
 barrass and diminish commerce. Lycurgus understood 
 this when he made iron the money of the Spartans for the 
 purpose of preventing commerce and turning the energies 
 of the people into other pursuits. 
 
 If the thing be convenient it may greatly increase com- 
 merce by stimulating industry. The paper promises of 
 governments or of banks have, in modern times, been 
 regarded as the most convenient article for an additional 
 circulation, and although these promises refer to some 
 other standard, usually coined money, nevertheless they 
 may perform the office of money, and the sovereign power 
 may declare them money, and make them tenderable in 
 payment of debts. It may be that a like numerical quan- 
 tity will not purchase as much property as the coined 
 money to which reference is made in the paper promises. 
 And this will always be so when the promise to pay coined 
 money is not at once performed upon demand ; for such 
 coined money, if of the precious metals, as is usual, has 
 an intrinsic value as an article of commerce in all the 
 markets of the world, and the paper promises have no 
 such value. But the measure of depreciation where they 
 circulate may be greatly affected by the question whether 
 they may be tendered in payment of debts. If they may 
 be, the depreciation will be far less. Hence, though there 
 may be great danger of the issues of government paper, 
 or irredeemable bank paper, in excess, thus widening the 
 margin between them and coined money, the danger may 
 be much less with government issues made tenderable in 
 payment of debts, than in bank issues not so tenderable. 
 And it is to be kept in mind that the states cannot make 
 
128 
 
 the issues of the banks established by them a lawful ten- 
 der in payment of debts, whereas, as I insisted, congress 
 may do so, and thus provide a safer and better circulation 
 than the states. The question of danger does not affect 
 the question of power. If the power exists it may be car- 
 ried into execution, however dangerous it may be. It may 
 be very unwise under some circumstances to exercise the 
 power, and very wise to exercise it under other circum- 
 stances — indeed, criminal not to do so. The salvation of * 
 the nation may depend upon its exercise, and when the 
 further life and existence of the nation may depend upon 
 the exercise of powers conferred upon congress, that con- 
 gress that should refuse to exercise such power, would be 
 justly chargeable, for all time to come, as participating in 
 the crime of nation-slaughter, and would be as justly con- 
 victed of such crime, as was ever, by municipal law, a 
 felon, of the crime of manslaughter. 
 
 This is not the place to justify or assail the expediency 
 of the act of congress authorizing the issue of treasury 
 notes, and declaring them receivable in payment of taxes, 
 interest, duties, debts and demands due to the United 
 States, and declaring them to be lawful money and a 
 legal tender in payment of all debts, public and private, 
 within the United States. It is the question ofpoiver that 
 we inquire about, and being of the opinion that the pro- 
 visions in the act referred to, have a direct tendency to 
 promote the circulation of the notes authorized to be 
 issued, and preserve them in a degree from depreciation, 
 as compared with coined money, and that they operate 
 directly upon commerce and tend greatly to regulate it 
 among the several states, and also with foreign nations, 
 by stimulating greater productions and facilitating the 
 circulation and exportation of such products, I am quite 
 clear that they are authorized by the provisions of the 
 Constitution already brought under consideration. 
 
 Let us pursue the question further. It is a great ques- 
 tion, affecting vitally the prosperity of the nation. 
 
 Considering the subject or object of these powers, and 
 the circumstances, the most important, that the people, 
 
129 
 
 who were to create and carry on this commerce, were 
 members of other bodies politic, possessing certain powers 
 in common with all independent states, which powers, if 
 exercised by them, would embarrass, derange, and might 
 effectually destroy the common system established by the 
 federal government, it was absolutely necessary to impose 
 certain prohibitions upon these other bodies politic— the 
 states. Among these prohibitions, I have always re- 
 garded, so far as commerce is concerned, and I may add, 
 the peace of the states and the harmony of the systems, 
 those which prohibit the states from making anything but 
 gold and silver coin a tender in payment of debts, and 
 from passing any law impairing the obligation of con- 
 tracts. If these powers had been suffered to remain with 
 the states, it is quite obvious that difficulties between the 
 people of the different states would soon have arisen, en- 
 dangering peace and harmony between them. Distrust 
 would have existed, and there would have been that 
 absence of confidence necessary as a base for commerce 
 between them. Independent nations may protect their 
 merchants and citizens from the frauds of other nations, 
 consequent upon a debasement of the coin or a change of 
 the measures of value in which debts are to be paid, or for 
 a neglect or refusal to pay ; by a resort to war. But the 
 states have no right or power to make war upon each 
 other, and they are prohibited from doing certain things 
 which might be a just cause of war, and the people have 
 entrusted the regulation of commerce among them to a 
 general common government. Notwithstanding the pro- 
 hibition I am noticing, many of the states have, from 
 time to time, for the relief and ease of their people, 
 enacted stay laws, valuation laws, &c, &c, all of which 
 on being brought properly before a court, in which the 
 judicial power of the United States is vested, have been 
 set aside, and the creditor has had his remedies unim- 
 paired, and peace and harmony between the people of the 
 different states have been preserved. 
 
 I am dwelling upon these commercial powers and the 
 system, relating to commerce, inaugurated by the creation 
 17 
 
130 
 
 of the new government — the common umpire — because 
 history informs us that the difficulties which had arisen 
 prior to the adoption of the Constitution, and which would 
 inevitably arise, were a main cause of, and reason for, the 
 establishment of a government that should be vested with 
 the powers necessary for the protection of commerce, and 
 all those engaged in it, and under which industry and 
 enterprise could safely develop the dormant resources of 
 the whole country, protected against the laws of one state, 
 invidiously discriminating in favor of its own citizens and 
 against those of another or other states. (See the pro- 
 ceedings which led to the adoption of the Constitution. 
 Elliot's Debates, v. 1, pp. 122 to 155.) They show the 
 great defects in the articles of confederation, for the 
 want of power to regulate commerce, and from it to 
 derive revenues. Efforts were made to correct the evils 
 arising from conflicting systems and supposed interests of 
 the states. Virginia, January 21, 1786, appointed dele- 
 gates to meet delegates of other states, " to take into 
 consideration the trade of the United States ; to examine 
 the relative situations and trade of the said states; to 
 consider how far a uniform system in their commercial 
 regulations may be necessary to their common interest 
 and their permanent harmony, and to report to the several 
 states such an act relative to this great object, as, when 
 unanimously ratified by them, will enable the United States 
 in congress assembled, effectually to provide for the same." 
 (Id., 149.) New York, ISTew Jersey, Pennsylvania and 
 Delaware, appointed delegates who met the delegates of 
 Virginia at Annapolis, in September, 1786. This conven- 
 tion made a report recommending a convention of all the 
 states, the powers of the deputies to be extended " to other 
 objects than those of commerce." Congress concurred in 
 the recommendation, and resolved that it was expedient 
 that such convention be held, and appointed a time and 
 place for holding it. 
 
 It was held in 1787, and produced the Constitution of 
 the United States. Thus it is seen that the difficulties 
 arising from the conflicting commercial systems of the 
 
131 
 
 states, was the principal cause of the calling of the con- 
 vention. 
 
 ISTow, although it was absolutely necessary for the suc- 
 cess of this commercial system, that the states should not 
 process the power to pass laws impairing the obligation of 
 contracts, or to make anything but gold and silver coin a 
 tender in payment of debts, there was no necessity that 
 the government, common to all, should be deprived of 
 these powers, nor any reason why congress should not 
 possess them. On the contrary, there was every reason, 
 in the nature of things, why such general government 
 should possess these powers and should fully exercise 
 them for the common benefit of all the people — the nation, 
 under circumstances that might arise ; powers, as I have 
 already said, possessed and exercised by all civilized inde- 
 pendent nations, and without which powers, a nation 
 would be unable to protect itself from the greatest and 
 most dangerous convulsions, and a large portion of its 
 subjects from ruin. All independent governments have a 
 vital interest in the prosperity of all their subjects, and in 
 the increase of their wealth ; and all wise governments are 
 constantly vigilant in observing the operation of their laws 
 of trade and commerce, changing, modifying and improv- 
 ing them, for the better protection of industry and the 
 development and protection of wealth. The most favora- 
 ble results, as experience has shown, generally follow from 
 stability in the laws which have long established the rela- 
 tions between money and property, contracts or promises 
 to pay money, and the money as it was when the promise 
 was made. Hence, the depreciation of the coin, change 
 in the mode of paying debts, and the thing in which the 
 debt may be paid, have always been regarded as evils, or as 
 an evidence of great national embarrassment, a calamity. 
 And such changes are, by the moral code, unjustifiable, 
 except in great emergencies. But the poiver to make such 
 changes is not, for these reasons, impeached. On the con- 
 trary, occasions do arise, when there is a necessity for the 
 exercise of the power, that commerce may not be de- 
 stroyed ; that the great mass of the people may not be 
 
132 
 
 ruined; that the resources of the nation may not waste 
 away and perish. All the people interested in the govern- 
 ment, and the government, have a common interest in the 
 prosperity of the people and the resources of the nation. 
 
 In my opinion, the provision objected to in the act in 
 question, has a direct, legitimate and pertinent relation to 
 the powers vested in congress over commerce. That the 
 provision declaring the treasury notes authorized to be 
 issued, "lawful money and a legal tender in payment of 
 all debts, public and private, within the United States, 
 except duties on imports and interest as aforesaid," had, 
 and has, a great effect upon the commerce of the country, 
 no one will question. Indeed, the complaint is that its 
 effect was to appreciate values ; thus extinguishing the 
 previous relation between commercial property and the 
 precious metals. It is not denied that its effect has been 
 to stimulate industry and thus increase production, and 
 impart greater activity to commerce. And, I think, it 
 cannot be successfully denied that in the absence of such 
 a provision, under the circumstances then and now exist- 
 ing, the commerce of the country would have received a 
 withering blow ; industry and production, instead of being 
 active, would have languished. 
 
 Creditors insisting upon the discharge of their debts in 
 something that could not be procured from, or even by, 
 the banks, universal insolvency must have ensued; and 
 production and, therefore, commerce, must have been, to 
 say the least, greatly diminished. Even danger of these 
 consequences is sufficient for my argument. I am exami- 
 ning the question of the power of congress, not whether 
 the power was wisely exercised. It will not be denied, 
 that, in the absence of such provision, property would 
 have greatly depreciated in value as compared with "gold 
 and silver coin," and that commerce would have been 
 thereby greatly affected. Certainly such results might 
 have been reasonably apprehended, and although con- 
 gress possessed the powers I have referred to, over com- 
 merce, it is claimed that it had no power to prevent such 
 results ; but that the previous law must have its course, 
 
133 
 
 whatever the consequences might be, though congress 
 was the author of such law, having provided coined money 
 and regulated its value by declaring how much of the 
 precious metals should constitute a dollar, and having 
 regulated the value of foreign coins, taking the dollar as 
 the standard ; its powers are exhausted, and that its action 
 was final. It is not, however, denied that congress may- 
 reconstruct the dollar, and make it, though nominally the 
 same, of far less value as compared with a given quantity 
 of the precious metals. The precious metals, it is said, 
 possess a real, intrinsic value in the estimation of all civi- 
 lized nations ; and that they are generally used as the 
 representative of values as money. And all this is so. 
 Still the precious metals are a mere article of commerce 
 between nations and among the people or subjects of such 
 nations, until the nation, by an act of legislation, gives to 
 them a different character, by taking certain portions and 
 impressing upon them the stamp of the government, and 
 giving them names which the people may use in their con- 
 tracts ; and also declaring that the damages for the breach 
 of all contracts shall be estimated in the stamped precious 
 metals according to their denominations, and shall be 
 satisfied by them. This system is very convenient and 
 important. But does it, of necessity, supersede all other 
 systems, though, in truth, it may have been once estab- 
 lished? Certainly not. Systems of money have been 
 adopted by nations for the purpose of developing the 
 industry of the people, and protecting the produce of such 
 industry ; for the purpose of creating and protecting com- 
 merce; as a means of producing national wealth and 
 enabling the people to pay taxes in something called 
 money, and which has a certain numerical, denominational 
 value, aside from the general value of the metals compris- 
 ing it as an article of commerce. The precious metals 
 are made money for the convenience of, and as an aid to, 
 commerce. Commerce is the principal thing on account 
 of which money is created by any nation. A people or 
 community, if such a case may be supposed, having no com- 
 merce, have no need of money. Now, although a nation has 
 
134 
 
 once established a system of money composed of the pre- 
 cious metals, as an aid to commerce, it does not follow 
 that it may not change that system, or, indeed, wholly 
 abrogate it, and substitute something else as the repre- 
 sentative of values, classifying it by numerals and giving 
 them names. The nation may and ought to do so, if, in 
 its judgment, it has discovered a better system for the 
 development of its industry, and the encouragement and 
 protection of commerce. Commerce is the subject, the 
 object to be protected ; the thing called money, the stan- 
 dard referred to in the making of contracts, is simply a 
 means of creating, stimulating and protecting commerce. 
 
 Now the United States government possesses as full 
 and ample powers touching commerce as any nation that 
 ever existed — certainly as to regulating it with foreign 
 nations and among the several states ; and this power is 
 sufficiently ample to justify congress in declaring what 
 shall be receivable in the payment and discharge of debts. 
 This power exists nowhere else in this country. The 
 power over commerce with other nations and among the 
 states is confided to congress. It, of necessity, includes 
 the power to prescribe the thing which shall be the com- 
 mon representative of commercial values. It is its duty 
 so to prescribe for the common benefit of all the people 
 who produce the means of, or things used in, commerce, 
 and who are engaged in it. 
 
 As to commerce, the people of the United States are 
 substantially one nation. Their state governments have 
 little or no jurisdiction over it. They must look to con- 
 gress for protection. They have agreed that congress 
 shall regulate their commerce with foreign nations and 
 among the states, and they have prohibited the states 
 from creating certain laws which would conflict with the 
 fair and legitimate exercise of the power confided to con- 
 gress, the prohibition embracing all debts and all contracts. 
 
 The fact that congress may establish " uniform laws on 
 the subject of bankruptcies throughout the United States" 
 supports, instead of detracting from, the argument. It 
 is one of those powers directly connected with commerce, 
 
135 
 
 and it embraces all bankruptcies, whether arising from 
 obligations entered into in foreign or domestic commerce ; 
 in short, all cases of bankruptcy. It excludes, necessarily, 
 the states from the exercise of the power, or rather no 
 state could have exercised the power "throughout the 
 United States ;" and our state insolvent laws are only 
 operative upon contracts made after their enactment, 
 upon the principle that such contract is made in reference 
 to the existing law, which enters into and constitutes a 
 part of the contract. A general bankrupt law, to operate 
 upon existing contracts, passed by a state legislature, 
 would infringe the provision prohibiting the passage of 
 any law impairing the obligation of contracts. Congress 
 may impair the contract and discharge the debtor. 1 refer 
 to this as showing the ample powers that it was intended 
 congress should have over commerce "throughout the 
 United States," and not as a power, for the carrying into 
 execution of which, the legal tender provision in question 
 was authorized. This power touching bankruptcies does 
 not interfere with the power to declare in what debts may 
 be paid, thus preserving commerce in full vigor and pre- 
 venting bankruptcies. 
 
 As we have seen, there are some express limitations 
 upon the powers of congress ; those relating to commerce 
 are, that " no tax or duty shall be laid on articles exported 
 from any state; no preference shall be given by any regu- 
 lation of congress, or revenue, to the ports of one state 
 over those of another ; nor shall vessels bound to and from 
 one state, be obliged to enter, clear or pay duties in 
 another." These limitations do not affect the question 
 we are considering. I conclude this view of the powers 
 of congress relating to commerce, by again referring to 
 the rule in McOulloch v. The State of Maryland, deduced 
 from a consideration of the provision authorizing laws to 
 be made to carry into execution the powers granted, viz., 
 that the Constitution allows to the national legislature 
 that discretion, with respect to the means by which the 
 powers it confers are to be carried into execution, which 
 will enable that body to perform the high duties assigued 
 
136 
 
 to it, in the manner most beneficial to the people. Let 
 the end be legitimate — let it be within the scope of the 
 Constitution, and all means which are appropriate, which 
 are plainly adapted to that end, and which are not pro- 
 hibited, but are consistent with the letter and spirit of 
 the Constitution, are constitutional. In my opinion, the 
 measure adopted by congress, in making treasury notes a 
 legal tender in payment of debts, comes within the tests 
 here laid down. 
 
 I have thus far considered the question under the com- 
 mercial powers of congress. I will consider the question 
 briefly under the power to borrow money on the credit of 
 the United States. This power does not mean literally 
 the borrowing and receiving the thing, called money. It 
 is not denied that congress may issue treasury notes and 
 compel their acceptance by the creditors of the govern- 
 ment. Borrowing money means neither more nor less 
 than raising supplies on the credit of the government. 
 The issuing and paying out of treasury notes may be a 
 forced loan to the government. But if they are issued 
 and sold in the market, as stocks are, for the purpose of 
 raising supplies, may not the government, in addition to 
 its promise to pay them, give to them a character, and 
 qualities which will command for them, a higher price in 
 the market ? As to stocks, it may increase the interest, 
 prolong the time for payment, or redemption, exempt 
 them from taxation, by itself or the states, and all for the 
 purpose of enhancing their value, and thus increasing the 
 supplies. 
 
 And so, I apprehend, congress may, for the like pur- 
 pose, make the treasury notes receivable in payment of 
 public dues, and in payment of all debts public or pri- 
 vate. Such qualities will give them greatly increased 
 value. They will impart to them negotiability, circula- 
 tion. AH persons, and especially those owing debts, will 
 accept them for property which the government needs, 
 because they can be used not only in purchasing property, 
 but in payment of debts, whether contracted before or 
 after the enactment of the law authorizing their issue. 
 
137 
 
 This quality of satisfying debts, undoubtedly imparts to 
 them very great additional value, and without it they 
 would, at once, depreciate greatly below their present 
 value as compared with coin, and the government might 
 be compelled to issue a far greater quantity of them, and 
 thus increase the national debt to be hereafter paid by 
 levying and collecting additional taxes. 
 
 Call the issuing of these treasury notes borrowing money 
 or a forced loan, and the quality in them, making them 
 receivable in payment of all debts, enhances their value 
 and enables the government to realize from them a greater 
 amount of supplies. The question is not, is this just or 
 unjust to the people, or a certain class of the people. 
 About this some may differ. The answer to such ques- 
 tion is, the power being conceded, that it was submitted to 
 congress, and congress decided it, and may reconsider it, 
 and again decide. The courts only inquire and decide 
 concerning the power. 
 
 Banks in this state are organized, and become incorpo- 
 rated under general laws, and the Constitution prohibits 
 the legislature from passing any law sanctioning the sus- 
 pension of specie payments by them. The legislature is 
 empowered to require by law ample security for the 
 redemption, in specie, of all bills or notes issued or put in 
 circulation as money by such banks. The legislature had 
 provided a system of security by deposits of bonds and 
 mortgages, and state or United States stocks, with a 
 superintendent of the banking department, and for the 
 sale of such securities and the redemption of such bills 
 and notes when payment is refused by the banks in the 
 " lawful money of the United States." It is argued that 
 the system results in a trust, and the creation of a trust 
 fund, for the benefit of the billholders— the cestui que 
 trusts ; and that congress cannot interfere with such trusts 
 and the rights of the beneficiaries under it. It may be 
 conceded that congress cannot interfere with trusts so as 
 to deprive beneficiaries of the enjoyment of the property 
 charged with the trust, except as the taxing power may 
 reach it in common with all other property. I speak of 
 
 18 
 
138 
 
 trusts generally. But may there not be trusts which con- 
 gress may affect and make void by legislation '? Suppose 
 property is charged with a trust to be converted into specie, 
 the precious metals, and then to be coined into money, and 
 the money to be paid over to the beneficiaries. Such a 
 trust would be void as to the coining. Suppose the trust 
 to be valid when created, but it conflicts with a valid act 
 of congress subsequently created, will it not cease to be 
 a valid trust ? It will make no difference whether the 
 trust had its origin in a state law or state Constitution, as 
 the laws of congress passed in pursuance of the United 
 States Constitution, are the supreme law of the land. 
 
 Now, if I am right, in the position that congress could 
 make the treasury notes in question a legal tender in pay- 
 ment of all debts, public and private, when a bank tenders 
 such treasury notes in payment of its circulating notes, it 
 at once discharges its debts, and there will be nothing for 
 the trust to operate upon, or rather the power of the trus- 
 tee to dispose of the trust property will be suspended. 
 
 Assume that the object of the securities is to secure the 
 payment of the bank notes in specie, or rather in coined 
 money (for this is the meaning of the word "specie," as 
 used in the Constitution), and the securities are brought 
 to a public sale, and the purchaser bids a certain number 
 of dollars, he will owe the superintendent that number of 
 dollars, which debt may be discharged by a tender of trea- 
 sury notes. It may be said that he will, as a trustee, only 
 be authorized to make sale of the securities for specie dol- 
 lars. That is, that he may exchange a certain amount of 
 securities for a certain number of specie dollars. It must 
 be literally au exchange, for if he takes the bid or promise 
 to pay a certain number of dollars in specie, such pro- 
 mise may be satisfied by tendering a Uke number of dol- 
 lars in treasury notes. 
 
 It is to be noticed, that the legislature does not grant 
 charters in this state annexing conditions to the grant, 
 but the banks are organized under general laws, contain- 
 ing certain requirements with which the banks in this case 
 complied, thus giving them a corporate existence. They 
 
139 
 
 also complied with the requirement of the legislature to 
 furnish security for the redemption of their bills and notes. 
 But a failure to redeem such bills in specie is no where 
 made a condition to their continued corporation existence. 
 The law, however, provides what may be done in case of 
 a failure to redeem such bills in "lawful money of the 
 United States." And the doing of what is prescribed, 
 touching the securities, may not necessarily arrest the 
 business of the bank. In short, its existence as a corpo- 
 ration does not depend upon the performance of a condi- 
 tion to redeem its bills in specie. And, as congress has 
 provided that it may pay its debts in treasury notes, the 
 law of congress takes precedence of the state law requir- 
 ing redemption in something else, if so construed, autho- 
 rizing and directing the bank superintendent to convert 
 the securities for the purpose of raising the meaus of pay- 
 ing the bills, which have been already paid. In other 
 words, the debt being paid, the superintendent has no 
 jurisdiction to proceed and convert the securities into 
 money. 
 
 In my opinion the judgment in this case should be 
 affirmed. 
 
 Note. — I concur in the opinions of my brethren, touch- 
 ing the power to borrow money upon the credit of the 
 United States, and refer to their more full and complete 
 arguments upon that power. 
 
OPINION OF JUDGE DENIO. 
 
 LEWIS H. METER, Appellant, 
 
 vs. 
 
 JAMES I. ROOSEVELT, Respondent. 
 
 Denio, 0. J. The subject of private contracts, embrac- 
 ing the manner in which they may be made, and in which 
 they may be discharged, lies within the domain of state 
 legislation. The states were distinct political commu- 
 nities at the formation of the Constitution, retaining, 
 notwithstanding the confederation under which they as- 
 sociated during the revolutionary contest, nearly all the 
 powers of municipal government and local administration. 
 It was not the system of the Constitution to abolish or 
 materially abridge these powers of the state governments, 
 though they were subjected to some important restraints 
 and qualifications, all of which, however, assume, so far 
 as private contracts between citizen and citizen are con- 
 cerned, the general jurisdiction of the states over the sub- 
 ject. Contracts when once made in conformity to the 
 laws of the state, cannot, according to a provision of 
 the Constitution of the United States, be impaired by 
 state legislation. But it may be done by congress inci- 
 dentally. Under the power to establish a uniform system 
 of bankruptcy, for example, debtors may be discharged 
 from their obligations, through the agency of the general 
 government. Nor is this all. Many express powers of 
 great importance, and which were considered, and were in 
 fact necessary to the existence and perpetuation of the 
 national government, were conferred upon congress; 
 which was. moreover, invested with the power to make all 
 
142 
 
 laws which should be necessary and proper for carrying 
 these powers into execution. In exercising these federal 
 powers, it has sometimes happened, and it may occur 
 again in more ways than can be enumerated or antici- 
 pated, that the pecuniary and business arrangements of 
 citizens may be interfered with, and their contracts, 
 though lawfully valid when made, may be annulled or 
 modified. Under the power to regulate commerce, and 
 to declare war, acts may become impossible or unlawful, 
 which were before legitimate subjects of business stipula- 
 tions, and in respect to which such stipulations had been 
 actually entered into. These are the necessary results of 
 another provision of the Constitution which declares, in 
 effect, that itself, and the laws of the United States made 
 in pursuance of it, and public treaties, shall be the su- 
 preme law of the land, and shall prevail against the state 
 Constitutions and laws, when in conflict with them. But 
 with these qualifications, the whole subject of private pro- 
 perty, its acquisition and forfeiture, its mode of enjoyment 
 and transmission between living persons, and its devolu- 
 tion by will and upon intestacy, and all executed and 
 executory contracts respecting it, are left to be regulated 
 wholly by the laws of the respective states. 
 
 It seemed necessary to state these principles, for, 
 although no question has been made respecting them, 
 they have an important bearing upon the controversy 
 which we are called upon to decide, and indeed, form the 
 basis of all just reasoning, upon the powers of the general 
 government. The mortgage executed by Bowne and his 
 wife to the defendant, the alleged payment of which was 
 in question in this case, was a lawful contract, by which 
 real estate in this state was conveyed to the latter to 
 secure the payment of a certain amount of money. It is 
 stated to be payable in lawful money of the United States 
 of America, but I lay no stress upon that expression. It 
 was a security for the payment of money, and that is all 
 which seems to me important. The lands thus conveyed 
 by way of mortgage, have been transferred to the plaintiff 
 subject to the lien ; and he claims a right to pay the debt 
 
143 
 
 and redeem the incumbrance, by giving to the creditor, 
 the defendant, an amount equal to the principal and inte- 
 rest, in the treasury notes of the United States, issued 
 pursuant to the late act of congress. The defendant 
 refuses to accept these notes as payment, and the ques- 
 tion is, whether he is compellable by law to do so. The 
 contract was a valid one under the laws of this state, and 
 it calls for the payment of a certain sum of money. The 
 question as to what shall amount to payment or perform- 
 ance, is, prima facie, one which is to be determined by the 
 state laws. The federal Constitution, which is a part of 
 the law of the state, prohibits any thing being made a 
 tender in payment of debts, by state authority, but gold 
 and silver coin. It is clear, therefore, that the offer of the 
 treasury notes was not a lawful tender of payment, unless 
 the act was a legitimate measure for the execution of one 
 or more of the powers which the Constitution has con- 
 ferred upon congress. Tbat act declares in express terms, 
 that the treasury notes of the class which were offered to 
 the defendant, shall be lawful money and a legal tender 
 for all debts, public and private, within the United States, 
 except duties on imports and interest on government 
 bonds and notes. (39th Cong., 2d Sess., ch. 33, § 1.) The 
 single question in this case is, whether congress had the 
 constitutional right to enact this law; and that depends 
 upon a comparison of its provisions with the powers 
 with which the Constitution has clothed congress. The 
 problem to be determined is, whether the relation of 
 means and end exists between them. I shall confine 
 myself to that feature of the law which provides for 
 forced payment of private debts; for it is not doubted by 
 any one but that the government may declare its own 
 obligations receivable in payment of debts due to itself. 
 
 It has been argued that there is no warrant in the Con- 
 stitution for the issue of federal securities for the purpose 
 of being used as a currency, though unaccompanied with 
 a provision making them a legal tender among indivi- 
 duals. If this position could be established the notes 
 which were tendered in this case, being illegal, would be 
 
144 
 
 ineffectual for any purpose. In the view I have been com- 
 pelled to take of the principal question, this subordinate 
 one is not necessary to be considered. It is proper, how- 
 ever, to say that it could scarcely become a judicial ques- 
 tion in any case. The right to issue the obligations of the 
 government for money borrowed or for property or 
 services furnished for national purposes is not and cannot 
 be questioned. The form and denomination of such secu- 
 rities are matters which belong to the discretion of the 
 government making them ; and if an issue could be raised 
 upon the intent to have them circulate as the representa- 
 tive of money, I should still think that it would be legally 
 unobjectionable to so accommodate them to the business 
 wants of the community, as to make it the interest of 
 successive holders to continue them in circulation, and thus 
 benefit the treasury by deferring the time of their present- 
 ment for payment. It has been urged that such issues of 
 paper would be an emission of bills of credit, as under- 
 stood at the time the Constitution was framed, and that 
 the making of them was expressly forbidden to the states 
 and not committed to congress. In support of this view 
 it is shown that an express authority to issue such paper 
 was at one time inserted in the draft of the Constitution, 
 in connection with the power to borrow money, but was 
 stricken out on the motion of a deputy from New York. 
 Upon an examination of the extract from the debates 
 which was referred to in the argument, I am of opinion 
 that it cannot be affirmed that this change was made from 
 an intention positively to prohibit the issue of such obliga- 
 tions, but that it was done from the apprehension that if the 
 power to make them was expressly conferred, the legisla- 
 ture might, under the idea of declaring their effect, have 
 engrafted upon them the quality of a legal tender. If the 
 authority was left as an incident to the power to borrow 
 money, purchase property, or pay debts, no such conse- 
 quence, it was thought, would follow. If it had been de- 
 signed to prohibit their issue, under any circumstances, by 
 the government of the Union as well as by the states, it 
 is presumed that a similar prohibition would have been 
 
145 
 
 applied in terms. If the effect of this debate was different 
 from what I conclude it to be, I should still hesitate to 
 allow it any considerable weight in construing the Consti- 
 tution. The only safe way, in my opinion, to deal with 
 that instrument is to look at its language in connection 
 with its contemporaneous history and the known circum- 
 stances of the times, and to attach such meaning to it as 
 we conceive the people who adopted it would have given. 
 I shall assume, therefore, that there does not exist any 
 constitutional objection to the currency which was issued 
 under the act of congress, which we are considering ; and 
 .that the only question which we can entertain arises upon 
 the mandate that the notes shall be a legal tender in the 
 payment of private debts. 
 
 The express power committed to the general govern- 
 ment " to coin money, regulate the value thereof, and of 
 foreign coin," and the denial of that power to the states, 
 may be considered as a further qualification of the state 
 jurisdiction over private contracts. Without these provi- 
 sions the right to determine what should constitute money 
 in transactions between citizens, would have remained, 
 along with the mass of general legislation, in the several 
 state governments. But the inconvenience which had 
 arisen from the different denominations of money which 
 were in use in the several states, and which had grown 
 out of their separate existence as colonies, and the desire 
 to establish a system of coined money upon the decimal 
 principle, which should accurately represent the money of 
 account, led to the vesting of the power over the subject 
 of coined money in the new government. 
 
 I shall spend no time in proving that the coming power 
 referred to relates, and is limited to the fabrication and 
 regulation of coins properly so called. I have carefully 
 considered the ingenious argument on that subject, which 
 has been submitted orally and in writing by one of the 
 counsel who maintain the validity of the legal tender pro- 
 vision; but those suggestions have not created in my mind 
 the slightest doubt that the language is to be under- 
 stood in its most obvious and natural sense. Coins are, in 
 
 19 
 
146 
 
 our language, pieces of metallic money ; and the coining 
 of money is the formation of such pieces by such mechani- 
 cal means as are appropriate to such an operation. There 
 is not the smallest reason to suppose that the word was 
 used in the Constitution iu any non-natural, recondite or 
 figurative sense. 
 
 The language is, to my mind, so distinct and precise as 
 not to admit of reasoning. But if it were in any manner 
 equivocal, the connection in which it is found in the 
 several places where it is used in the Constitution would 
 determine its meaning to be such as I have mentioned. 
 In the principal clause the value of the coin to be made is to 
 be regulated by congress ; but this could not be predicated 
 of the obligations of individuals or of governments, the 
 value of which is either the absolute amount stipulated to 
 be paid, or their worth arising out of the fluctuating con- 
 siderations of the pecuniary means and ability of the 
 promisors, and the interest to be paid, and the time of 
 payment of the principal— the last of which circumstances 
 must vary every day by the efflux of time. The value of 
 foreign coiu is also to be regulated, but it is impossible to 
 suppose that this could refer to securities executed in foreign 
 countries. Then in the clause referring to the punishment 
 of counterfeiting, a sharp distinction is apparent between 
 the public securities and the current coin of the United 
 States ; and in the clause prohibitory of the power of the 
 states, it is forbidden to them to coin money and to emit 
 bills of credit, which plainly shows that these are separate 
 and distinct acts ; and in the same sentence, where the pro- 
 hibition is inserted against making anything but the pre- 
 cious metals a tender, it is called gold and silver coin. 
 If the determination of the case depended upon the mean- 
 ing of the express power to coin money, I should not, as I 
 have mentioned, be able to entertain the smallest doubt 
 that it does not embrace the obligations of the general 
 government in whatever form they may be issued. 
 
 Let us then consider whether the power to make these 
 notes a legal tender results from any of the express 
 powers conferred on congress. Among the attributes ex- 
 
147 
 
 pressly conferred is the very extensive power to regulate 
 commerce; and the enactment of the legal tender provi- 
 sion has sometimes been referred to that clause. But it 
 has no bearing upon the transactions of citizens which are 
 limited to a single state ; the power relating only to com- 
 merce with foreign nations, and among the several states, 
 and with the Indian tribes. This enactment does not pro- 
 pose to regulate foreign or inter-state commerce, or to be 
 in any sense a regulation of that subject. It compels the 
 citizens in all places, and at all times, and under all cir- 
 cumstances to receive the treasury notes in payment of 
 debts, whether these debts had any connection with a 
 commercial transaction or were wholly foreign to and 
 independent of it. Whether a law introducing the trea- 
 sury notes into foreign and inter-state commerce, and com- 
 pelling their reception as money when offered in connection 
 with transactions of that nature, could be sustained, will 
 perhaps depend upon some considerations, to which I shall 
 presently advert. 
 
 It may be said that any measure which tends to pro- 
 mote internal traffic and facilitate domestic exchanges 
 would incidentally influence foreign commerce. The 
 same may be said respecting the whole subject of private 
 exchanges and contracts. But to embrace all these sub- 
 jects within the power to regulate commerce, would be to 
 break down all distinctions between the national and state 
 governments, and commit the whole subject of internal 
 government to the discretion of congress. 
 
 I concede that it is not incumbent upon those who 
 argue for the validity of the legal tender clause to select 
 any one express power and to maintain that the provision 
 is a legitimate execution of that power. They may group 
 together any number of these grants of legislative au- 
 thority, and if the right to enact that provision is fairly 
 deducible from any or all of them— their position is estab- 
 lished. The power to raise money, for raising and main- 
 taining a public force by land and by sea, to pay the 
 public debts, and indeed nearly all of the enumerated 
 powers, require or at least suppose the necessity ol the 
 
148 
 
 obtaining, possessing, managing and disbursing moneys to 
 a large and indefinite amount. No idea can be formed of 
 the government of a great country, though the power of 
 legislation should be restricted to external affairs, which 
 would not require such government to be an immense 
 dealer in money and commodities of almost every kind. 
 The strong public necessity for obtaining pecuniary means 
 to carry on the government and to effectuate the great 
 purposes for which it was established, have not been and 
 cannot be overstated, whether we advert to the imminent 
 crisis which is this day upon us, or consider it in its usual 
 condition of peace and tranquillity. It was quite appro- 
 priate to advert to the present condition of the country 
 to show that the necessity for obtaining funds may be so 
 sudden, fluctuating and spasmodic that the public needs 
 will not wait upon the regular receipts of revenue, but 
 must sometimes be met by extraordinary exertions, and 
 entail pecuniary sacrifices upon the public and individuals. 
 Still the Constitution furnishes the measure of the national 
 authority, in war as in peace ; and, as judges, our duties 
 are limited to the construction of that instrument, accord- 
 ing to our best judgment of its actual meaning. The 
 immediate question is, therefore, as has been stated, 
 whether the various powers committed to congress, which 
 require, in order to their due execution, the acquisition and 
 use of large and often fluctuating amounts of money, 
 empower the national government to annex to the notes, 
 which I concede it has a right to issue, a quality which 
 shall compel individuals to receive them in payment of 
 debts against their will. 
 
 It is a circumstance connected with the inquiry, though 
 not material to the view which I take, that by the arrange- 
 ments of the act the notes are not payable in coin ; for 
 the quality which makes them receivable for all public and 
 private debts, authorizes the government to redeem them 
 in other notes of the same kind, so that they are to consti- 
 tute a medium of payment and exchange which is to be 
 quite distinct from gold and silver money and not con- 
 vertible into it, and which, by the well known laws of 
 
149 
 
 currency, will displace the latter from circulation, and will 
 cause it to depreciate, in comparison with that standard, in 
 proportion to the amounts which may be issued. To force 
 them upon the creditor as payment contrary to the gene- 
 ral laws of the states, which do not authorize debtors thus 
 to discharge their obligations, is to enter into the domain 
 of the state legislature and to supersede to that extent 
 the operation of the state laws. This is not necessarily a 
 fatal objection, for if the provision annexing the quality 
 of legal tender to the notes is a necessary and proper law 
 for carrying into execution the powers expressly conferred 
 upon Congress and is not forbidden by any part of the 
 Constitution, it changes or abrogates, by virtue of the 
 pre-eminence attributed to federal legislation, when consti- 
 tutional, all state laws and constitutions so far as the 
 exigency of the case may require. 
 
 We are to consider then whether the provision in ques- 
 tion is necessary and proper to the execution of the various 
 enumerated powers which require the obtaining and dis- 
 bursement of moneys for national purposes. And we 
 observe in the first place that certain means are specifically 
 provided by the Constitution for obtaining funds for pub- 
 lic objects. Congress is empowered to levy and collect 
 taxes, duties, imposts and excises to an extent limited 
 only by the public purposes to which moneys may be 
 applied ; and to borrow money to the like extent on the 
 credit of the United States. In addition to these means, 
 it may dispose of the territory and other property of the 
 United States, and of course may receive the equivalent 
 for such disposition in money. I do not at this moment 
 inquire whether the controverted provision is within any 
 of these last mentioned express powers, namely, those of 
 taxation and borrowing, but whether, under the other 
 delegations of authority which require for then- execution 
 the possession of pecuniary means, it was competent for 
 the government to oblige the citizen to accept these notes 
 as cash, for the purpose of gaining, by means of the circu- 
 lation which such a quality would give them, additional 
 pecuniary resources for the purposes of the government. 
 
150 
 
 I am of opinion, that this would be quite too far removed 
 from the delegation of power to be considered an enact- 
 ment framed for its execution. I think, moreover, that 
 the Constitution did not contemplate and does not admit 
 of the raising of moneys from the people except by taxa- 
 tion and by borrowing, or by the sale of the public lands 
 and property. Pecuniary means gained by the circulation 
 of paper not bearing interest, are the profits which bankers 
 acquire by their peculiar business. It is a well known 
 pursuit in which individuals may engage, by government 
 license when that is required by law, and without it when 
 it is not exacted by some legal requirement. I think that 
 so far as the immediate question is concerned, the govern- 
 ment has an equal right to authorize the national treasury 
 to embark in any other of the pursuits of business by 
 which money is acquired as in this of making profits by 
 the forced circulation of its notes, under this legal tender 
 clause. Hence I conclude that the disputed measure can- 
 not be justified as an execution of any of the powers 
 requiring the possession and authorizing the expenditure 
 of money. 
 
 Then as to the express power to borrow money on the 
 credit of the United States, which is the delegation of 
 authority principally relied on. The ordinary operation 
 of effecting public loans is sufficiently simple and obvious, 
 and I have already said that I perceive no valid objection 
 to arranging the securities in such a form as that the lend- 
 ers, and those who may take such securities by transfer 
 shall be willing to hold or circulate them instead ot imme- 
 diately presenting them for redemption. The power to 
 borrow money implies the giving of obligations for its re- 
 payment. The form of these is matter of convention 
 between the parties to the loan, and is an incident of the 
 principal power. To the extent which they will circulate 
 upon the credit of the government, the incidental advan- 
 tage is legitimately obtained. 
 
 But it is a step far beyond this to require that all per- 
 sons shall receive them in payment of all manner of obli- 
 gations. This has no natural relation to the contract of 
 
151 
 
 borrowing. The parties who are thus obliged to receive 
 the borrower's obligations are not parties to the loan, and 
 have no necessary connection with it. ' True, tbey are sub- 
 jects, for some purposes, of the same political sovereignty 
 which is the borrowing party, and if that sovereignty was 
 universal in its objects, and was not restrained by consti- 
 tutional limitations, the duty of receiving the obligations 
 could be rightfully imposed like any other burden created 
 by legislative authority. But private contracts and the 
 manner in which they are to be performed and discharged 
 or enforced are, as has been stated, embraced in the reserved 
 rights of the states, and congress has no general legislative 
 power over the subject. If they have any power what- 
 ever, it is not direct, but oblique or collateral. If in the 
 execution of the enumerated powers it becomes necessary 
 and proper to enter upon the domain of state legislation, 
 the state laws must yield. This may be made more plain by 
 cases which may be supposed. The states have the general 
 right to regulate the interest upon money loaned. Sup- 
 pose a state legislature to enact that none of its citizens 
 should loan money to any party, private or public, at a rate 
 of interest above five per cent, and that congress, con- 
 sidering the rate too low, should provide by law that 
 seven per cent might be lawfully required of any bor- 
 rower by any lender. Such an act of course would be 
 void as an attempt to legislate upon a subject not com- 
 mitted to the general government, but reserved to the 
 states. Yet there could be no objection to a statute of 
 congress which shoidd authorize the borrowing of money 
 upon the credit of the United States at any rate, however 
 excessive, which it was thought expedient to allow and at 
 which citizens might be willing to lend. This would 
 necessarily change and modify the state law pro tanto, but 
 it would be sustained, because it would be a law made to 
 carry into effect a power expressly conferred upon con- 
 gress, namely, the power to borrow money, which would 
 embrace all the usual incidents of loans. Then suppose 
 that with a view to facilitate federal loans, and to give the 
 public bonds a ready reception, congress should attempt to 
 
152 
 
 subject all individual borrowing in the states to a low rate 
 of interest, while the federal treasury was allowed to con- 
 tract at a higher rate. This would bear some resemblance 
 to the law which is now questioned, and yet it would be 
 preposterous to consider it a law passed in the execution 
 of the power to borrow money on the credit of the United 
 States. 
 
 The question how far an act of congress could be con- 
 sidered to have been passed in the execution of an enume- 
 rated federal power has been discussed in a variety of 
 forms as particular laws or projects of laws have come 
 under consideration in the administrative, legislative and 
 judicial branches of the government. The discussions 
 most material to be considered, because they are abso- 
 lutely authoritative with us, are the judgments of the 
 supreme court of the United States. The debates in these 
 cases have usually turned upon the words necessary and 
 proper as used in the Constitution. To a certain extent 
 the necessity and propriety of an enactment must rest in 
 the discretion of the legislature. But to hold that the 
 exercise of that discretion is final and not subject to the 
 examination of the judiciary would be to break down all 
 limitations upon the power of the general government. 
 Accordingly I think no judge has ever intimated the ex- 
 istence of any such extreme doctrine. On the other hand, 
 the question whether a given measure is the most suitable 
 or efficient for the execution of an enumerated power must 
 of course be left to the discretion of congress, and that 
 discretion cannot be reviewed by the courts. The diffi- 
 culty lies in determining in a particular case whether the 
 disputed enactment has such a relation to the power which 
 it is said to be passed to carry into execution, that it can 
 be affirmed to be necessary and proper for that purpose. 
 The most thorough examination of the subject was that 
 which was had on the several occasions when the constitu- 
 tionality of the Bank of the United States came before the 
 supreme court. (McCtdloch v. The State of Maryland, 
 4 Wheat., 316 ; Osborn v. The United States Bank, 9 Ed., 
 738.) The act was sustained on the theory that it was a 
 
153 
 
 necessary arrangement for carrying on the financial opera- 
 tions of the government. It was not supposed to be abso- 
 lutely necessary, but to be so in the sense of being appro- 
 priate and directly convenient and useful. That judgment 
 is to be accepted by the state tribunals as a true exposi- 
 tion of the Constitution on this point ; but the resem- 
 blance in principle between the legislation then in ques- 
 tion and that which we are considering, is not so striking 
 as to afford much aid in the present difficulty. The 
 principles, however, aunounced by the eminent chief justice, 
 seem to me to be irreconcilable with the validity of the 
 legislation in question. It was conceded that the powers 
 of the government were limited, and that those limits 
 were not to be transcended ; but it was maintained by a 
 course of reasoning which cannot easily be controverted, 
 that the national legislature possessed a discretion in the 
 adoption of the means by which the powers conferred by 
 the Constitution were to be carried out. It was conceded 
 that the means must be such as were appropriate and were 
 plainly adapted to the end authorized to be accomplished. 
 In another part of the opinion it was intimated that the 
 means, in order to be legitimate, and to fall within the 
 qualifying words, necessary and proper, must be such as 
 were either needful, requisite or conducive to the principal 
 object embraced in the delegated power. Was it ever be- 
 fore supposed to be incident to the contract of loan, that 
 the rights of other persons, strangers to the transaction, 
 were to be controlled or affected ? Either the borrower or 
 the lender may insist upon any stipulation to which the 
 other will consent, and when the former is a sovereign 
 state, it may agree to any concessions on its own part not 
 inconsistent with its constitutional limitations, and insist 
 upon imposing any terms upon the lender which it may be 
 thought expedient to require and to which he will consent. 
 The arrangement of these mutual stipulations embraces all 
 which is material or which can be appropriately attached 
 to the contract of loan. A provision which is to con- 
 trol other parties not connected with the transaction, to 
 their loss thoxigh to the advantage of the lender, cannot 
 
 20 
 
tl 
 
 154 
 
 be appropriate, for it is foreign to the nature of the trans- 
 action and has never before been employed in connection 
 with such arrangements. A consolidated government 
 might annex such terms to the contract, for it has plenary 
 authority over all its citizens when not constitutionally 
 restrained. As to being needful, requisite or essential, it is 
 not so in any sense which would enable the government 
 to impose on the citizens who should have business rela- 
 tions with the holders of the securities, conditions which 
 would only conciliate such holders. 
 
 The power which the Constitution confers upon the 
 government to effect loans, is not one to be exercised in 
 inritum, like the taxing power. It requires only a party 
 willing to advance the funds upon the terms which may 
 be offered, and it does not imply anything coercive as to 
 any one. It requires a consenting party only ; unlike the 
 taxing power which implies legal coercion, and does not 
 seek the consent of any other party. 
 
 But for a single authority, which I will now mention, I 
 should think it very plain that the power to borrow money 
 on the credit of the United States, did not authorize con- 
 gress to compel individuals to accept treasury notes in 
 discharge of private debts payable in money. 
 
 In Weston v. The City Council of Charleston (2 Pet., 
 449), it was held that the power to borrow money on the 
 credit of the United States contained in itself a prohibi- 
 tion to tax the securities given upon the loan by state 
 authority. The tax, which was held illegal, was laid upon 
 certain stock of the United States, eo nomine, and this 
 court was of opinion that the case might have turned 
 upon that circumstance, and that money invested by our 
 citizens in federal loans was yet taxable along with the 
 mass of the property of the citizens, under the laws of this 
 state, which laws tax all property alike. (The People v. 
 The Commissioners of Taxes, &c, 23 N. Y., 192.) On a 
 writ of error to the supreme court of the United States, 
 our judgment was reversed, that court disallowing the dis- 
 tinction on which we proceeded, and holding that the 
 federal bonds were exempt from taxation in any form 
 
155 
 
 under state authority. An act of congress had been 
 passed, declaring in terms that the scrip of the public debt 
 of the United States should not be subject to taxation 
 by the states. A fortiori, a state tax imposed upon 
 stock issued since the declaratory act mentioned, cannot 
 be sustained in the supreme court. The principle has 
 some analogy to the one we are examining. The laws of 
 the states on the subject of taxation for state purposes are 
 as fully within the reserved rights of the states, as those 
 which relate to private contracts and the payment of 
 individual debts. The general government has no juris- 
 diction respecting the legal arrangements which the states 
 may make on either of these subjects; and yet it has 
 been held that the power to borrow money alone con- 
 fers upon the securities given for loans, a quality which 
 no other property has, by exempting them from taxation. 
 I hope it will not be attributed to an unreasonable pride 
 of opinion that I feel compelled to say, that I have not 
 been able to appreciate the reasons upon which that con- 
 clusion was reached. I, however, fully acknowledge the 
 duty of following the adjudication of the supreme tribunal ; 
 and since the judgment referred to was pronounced, we 
 have conformed our decisions in similar cases, to the rule 
 laid down, and shall continue to do so. I think the law 
 exempting the federal bonds from state taxation was as 
 foreign to and as unconnected with the power to effect 
 federal loans, as that which declares the treasury notes a 
 legal tender in the payment of debts, and I acknowledge 
 the analogy which exists between the cases. But the 
 judgments of the supreme court did not proceed upon 
 reasons which would justify the legal tender clause. 
 Those judgments, according to the published opinions, 
 regarded the public bonds as instruments or means em- 
 ployed by congress to carry out the power to make loans, 
 and as of the same general nature as the Bank of the 
 United States. It clothed them with an immunity, but 
 did not propose to render them instruments of coercion. 
 Finding this distinction to exist, I do not think it proper 
 to act upon the analogy which I have conceded. I am, 
 
156 
 
 therefore, of opinion that the clause in the act making the 
 notes a good tender in the payment of private debts can- 
 not be sustained under the power to borrow money, nor 
 under any other of the express powers conferred upon 
 congress. 
 
 But I am of opinion that the legal tender clause is 
 repugnant to express provisions of the Constitution. I 
 refer to the prohibition imposed upon the states to make 
 anything but gold and silver coin a tender in payment of 
 debts, and to the provision which confers upon congress 
 the power to coin money and regulate the value thereof, 
 and of foreign coin. These provisions are in pari materia 
 and must be considered in connection with each other, and 
 I think the result of both is, that it was the settled de- 
 termination of the convention, that compulsory payments 
 should be made only in coin. This position is entirely 
 distinct from the topic which I have thus far considered. 
 If it were conceded that declaring the notes to be a legal 
 tender, was an allowable means for borrowing money 
 upon them, still it could not be done if the fair result of 
 other constitutional provisions were that coins of the pre- 
 cious metals were the only medium in which compulsory 
 payments could be made. I have already considered the 
 coining power in connection with the argument that it 
 embraced in terms the power to fabricate money other 
 than metallic coins, properly so called, and have nothing 
 to add on that point. But it was the object of that provi- 
 sion to enable and to require the general government to 
 cause coins to be manufactured which should be impressed 
 with the stamp of the national authority, and should be 
 received throughout the Union as absolutely authentic, 
 and which should be deemed and taken in all transactions 
 whatever, as money of the precise value indicated by the 
 stamp of the national mint; and that they should in like 
 manner prescribe the value of such foreign coins as they 
 should think proper to have circulated as money. This 
 provision belongs to the class to which I have referred as 
 to some extent militating against the general system 
 which left to the state governments the regulation of pri- 
 
157 
 
 vate pecuniary dealings and contracts. That system, if 
 unqualified, would allow the states to exclude any medium 
 of payment not established by their own authority ; but 
 they cannot, consistently with the provision, disallow the 
 absolute authority of the federal coins. But the power to 
 create money does not extend beyond the fabrication of 
 coins. 
 
 Hence, I am unable to find the ground for further 
 intrusion into the field of state legislation respecting the 
 money to be used in private transactions. The federal 
 legislation respecting coined money is absolutely binding 
 upon all the people of the Union, and, in my opinion, it is 
 exclusive of any power, residing anywhere, to make any 
 other description of money. The subject with which the 
 convention was dealing, was that of money which was 
 to be authentic and authoritative everywhere throughout 
 the Union. It prescribed coins, to be made by federal 
 authority as such money, and was silent respecting any 
 and every other kind of currency. The argument expressio 
 unnis exclnsio alterius applies, and would be of great force 
 if there were no other, but a reason equally strong to my 
 mind is, that the convention was acting upon a subject 
 belonging generally to state jurisdiction, and cannot with 
 propriety be understood as going beyond the provision 
 actually made. The prohibition upon the state governments 
 to coin money affords an invincible inference that the coins 
 to be struck under the authority of congress, were to be 
 the only authentic money to be used in the United States. 
 Certainly there is an unavoidable implication, that nothing 
 shall be done by any authority in the nation, which shall de- 
 stroy the value and usefulness of this federal money. But 
 can it be used for regulating exchanges and making pay- 
 ments, if another thing of less or even of different value is 
 declared money? There cannot, in the nature of things, 
 be two standards of value. If the treasury notes are of 
 less value than the gold and silver coins, the latter will 
 be superseded and become absolutely unavailable for all 
 purposes for which money is required to be used ; for no 
 one will make use of a gold eagle, when with that coin 
 
158 
 
 he can purchase twelve or fifteen dollars, each of which 
 will answer his purpose precisely as well as one-tenth of 
 the eagle. The legal tender provision practically nullifies 
 the coining power. For all practical purposes it converts 
 the federal coins fabricated in obedience to the Constitu- 
 tion, into mere bullion. This appears to me plainly to 
 conflict with the provision for the striking of such coins. 
 
 But the prohibition upon the states against making any 
 thing but gold and silver coin a tender in payment of 
 debts, seems to me also conclusive upon the subject. The 
 restraint, it must be remembered, is upon the sovereignty 
 to whose jurisdiction this subject of debts and their pay- 
 ment belongs. The general government, as I have 
 shown, had no power over that subject, except as it may 
 be deduced incidentally from some express power. It 
 should be further borne in mind, that the prohibitory 
 mandate is not addressed to the state legislature alone, 
 but to the judges as well. No authority of the states, 
 legislative or judicial, can, by the terms of this clause, 
 admit anything but coin fabricated from the precious 
 metals to be a valid payment. It is to be observed also, 
 that the inhibition is not limited to values created by state 
 atithority. That subject was provided against by the 
 language forbidding the states to emit bills of credit. 
 The word anything, embraces all imaginable subjects of 
 which payment might be predicated, irrespective of their 
 material substance, and of the authority by which they 
 were created. To constitute payment there must be 
 coins, that is, stamped pieces of metal, and they must 
 be composed of the precious metals. When the state 
 legislatures which are to establish the legal principles 
 respecting payments, and the courts which are judicially 
 to determine what shall be payments in any given in- 
 stance, are forbidden by paramount and supreme autho- 
 rity to make anything but coins struck from the precious 
 metals a payment, the natural, and, I think, the inevitable 
 result is, that nothing except such coins can be adjudged 
 to be payment in any case whatever. And when, in con- 
 nection with such inhibition, we find ample provision 
 
159 
 
 made by the same supreme authority, for the supply of 
 such coins by fabrication, and by the adoption of those 
 coming from abroad, I cannot doubt but that it was the 
 persistent design of the Constitution which contains these 
 mandates, to require as a fundamental policy the exclu- 
 sion of everything else than the coins indicated from the 
 attribute of compulsory payments. We are to-day asked, 
 by our judgment, to make the treasury notes of the United 
 States a payment of the debt owing to the defendant. 
 Our answer ought, I think, to be that we are forbidden 
 by the supreme law of the Union to do it. That law has 
 no regard to the value of the thing offered as a substitute, or 
 to the authority by which it was created. It is forbidden 
 absolutely and under all circumstances. 
 
 An argument has been somewhat pressed upon us aris- 
 ing out of the action of congress upon the subject of legal 
 tender. After providing for the establishing of the mint 
 and regulating the amounts of pure gold and silver to be 
 contained in, and the value of the various coins to be 
 struck, the legislature has, at various times, from an early 
 period of the government, declared those coins to be a 
 •legal tender for the payment of all debts and demands. 
 The argument is that there is nothing in the Constitution 
 expressly enabling congress to declare anything to be a 
 legal tender, and yet that body has, with universal public 
 acquiescence, passed the several acts referred to. Hence 
 it is insisted that the power of establishing a legal tender 
 has been universally conceded to exist, and if the power 
 exist, it is within the legislative discretion to determine 
 as to what shall be made such tender. In point of fact 
 the coins which have been declared a tender are such as 
 were composed of gold and silver with sufficient of alloy 
 of baser metals to give them the requisite consistency for 
 convenient use. My opinion upon this point is that the 
 power to coin money and regulate its value, is an authority 
 to make money which shall be legally such in every part 
 of the Union and for every purpose for which money shall 
 be required or needed to be used. The coins to be struck 
 are national coins and money, and so of those which are 
 
160 
 
 adopted, and the value of which is declared, and where 
 any law, state or national, or any lawful contract, or any 
 other lawful exigency calls for the payment of money as 
 such this national money is the thing indicated. 
 
 The word money, as used in the Constitution, ex vi 
 termini, implies all that is expressed by the words legal 
 tender, and without the use of these words in the acts of 
 congress, the coins struck at the national mint, and the 
 foreign coins, the value of which has been regulated by 
 congress, could be used in forced payments in all cases. 
 The express provisions respecting legal tender are em- 
 ployed for the purpose of explanation, and are only 
 declaratory of the effect of the national currency when 
 offered for the purpose of payment. In reference to what 
 had been said respecting the ability of congress to debase 
 the national currency, I am of the opinion that the several 
 clauses respecting coiuing and what may be made a legal 
 tender by the states, together amount to a direction that 
 the money to be created under the clause respecting coin- 
 ing, shall be composed of the precious metals, as a prin- 
 cipal ingredient, and that coins not composed of these 
 substances cannot constitutionally be made national 
 money or legal tender. 
 
 I have examined this question and have come to a con- 
 clusion upon it, as though it involved no other conse- 
 quences than the recovery, or the failure to recover the 
 small sum of money claimed by the defendant, and I do 
 not know of any other method of considering a judicial 
 question involving pecuniary considerations. The ex- 
 tended and very able discussion at the bar, in which con- 
 siderations of a public character have been largely pressed 
 upon us, have had the effect, to which they were certainly 
 entitled, of inducing caution and very mature delibera- 
 tion upon the legal points involved, but they cannot 
 legitimately have any further influence. 
 
 I shall be well satisfied if a majority of my brethren, and 
 the federal court in which our decision will ultimately be 
 reviewed, can reconcile the legislation which the defend- 
 ant challenges Avith a reasonable interpretation of the 
 
161 
 
 Constitution of the United States. It is not to be denied 
 that it constitutes a part of a plan of public finance which, 
 whether wisely organized or not, it is extremely important 
 in the preseut crisis to maintain if it can properly be done. 
 If my sense of duty would allow me to decide the case, as 
 I should wish the law under the circumstances of this mo- 
 ment temporally to be, I would unite in a judgment which 
 should establish the validity of these legal tender notes ; for 
 the preservation of the federal Union, which is said to be 
 involved, is the most ardent, I may say passionate desire of 
 my heart ; and no one, I think, can honestly pretend that 
 this can be accomplished except by the vigorous employ- 
 ment of the armed force of the nation. To that purpose, 
 the realization and expenditure of immense pecuniary 
 resources are plainly indispensable. No man can have a 
 stronger sense of the absolute causelessness, nay, the 
 utter wickedness of the insurrection than that which I en 
 tertain ; or of the duty of every citizen, whether in public 
 office or a private station, to yield to the constituted autho- 
 rities upon all questions of policy or expediency, not only 
 implicit obedience, but a sincere and generous confidence 
 and co-operation. 
 
 But we are placed here to determine the law as we un- 
 derstand it to be, in the controversies which are brought 
 before us, and I should forfeit my own self-respect if I 
 could unite in a judgment affirming the constitutional 
 validity of the legislation in question, believing as I must 
 that its provisions are repugnant to the letter and spirit 
 of the Constitution. 
 
 Seeded, J., concurred in the conclusions of Ch. J. 
 Denio. 
 
 Eosekkans, J., did not deliver a written opinion, but 
 said he concurred with the majority of the court, on the 
 ground that the principle involved in the case had been 
 determined in favor of the plaintiff, by the supreme court 
 of the United States, in McCulloch v. The State of Mary- 
 land (4 Wheaton's Rep., 316), and the late case of Tlie 
 
 21 
 
162 
 
 People, on the Relation of the Bank of Commerce, against 
 The Commissioners of Taxes of the city of New York. 
 (2 Black. U. S. Eep.)